Puckett v. Guenther

• Decision Date: 18 March 1909
• Parties: J. B. PUCKETT, Appellee, v. J. A. GUENTHER, Appellant
• Court: Iowa Supreme Court

120 N.W. 123

142 Iowa 35

J. B. PUCKETT, Appellee, v. J. A. GUENTHER, Appellant

Supreme Court of Iowa, Des Moines

March 18, 1909

Appeal from Black Hawk District Court.--HON. FRANKLIN C. PLATT Judge.

THIS is an appeal by defendant from an order of the trial court correcting the record in the main case.-- Affirmed.

Affirmed.

Courtright & Arbuckle, Reed & Tuthill, and Milchrist & Scott, for appellant.

Mears & Lovejoy, for appellee.

OPINION

EVANS C. J.

On April 5, 1905, plaintiff obtained a verdict against the defendant. On May 26, 1905, the trial judge entered on his calendar an order for judgment for the amount of the verdict. On July 10, 1905, the defendant perfected his appeal to this court on the assumption that judgment was entered on May 26 1905. Upon that purported appeal to this court, the plaintiff as appellee contended that the service of notice was premature, in that no judgment had been entered of record until after July 10, 1905. He filed a motion in the lower court asking that it be ascertained when the judgment in his favor was actually spread upon the records. Notice was given to the defendant, and testimony was heard upon the question. Upon such hearing no witness was able to fix the exact date upon which the record was actually made, but all agreed that it was not made prior to October 1, and that it was made about that time. The court thereupon corrected the record so that it should show October 1 as the date of its making. From this order an appeal was taken to this court, and the order was affirmed, and the appeal in the main case was dismissed. See Puckett v. Gunther, 137 Iowa 647, 114 N.W. 34. After the affirmance of the order by this court the defendant filed a motion in the trial court calling attention to the fact that October 1, 1905, was Sunday, and that the entry of the judgment upon the records was for that reason void. The relief asked by the defendant was that valid judgment now be entered upon the record nunc pro tunc, in order that defendant might perfect a valid appeal therefrom and pursue the litigation to a determination. This motion was resisted by the plaintiff. Plaintiff also filed a counter-claim asking for further correction of the record so that it would show that the judgment was not in fact entered of record on Sunday, but upon a secular day. The two motions were heard together. Upon such hearing the trial court again corrected the record so as to show that it was entered on October 2. It made a written finding to the effect that the first correction fixing the date as on Sunday was a mere inadvertence, that the fact that October 1, 1905, occurred on Sunday was overlooked by the court, that there was no evidence on the former hearing at all tending to show that the record was made on Sunday, nor was such Sunday question considered at all. As a result of its finding, it denied the motion of the defendant. From this order of the court making the second correction the defendant has appealed, and the correctness of such order is now submitted to our consideration.

The contention of the appellant is twofold. His first proposition is that the first finding of the court, fixing October 1 as the date of the record, was an adjudication, and that the question can not be again litigated. He so pleaded in the court below. His second proposition is that the entry of the judgment upon the record was of logical necessity a judicial act, in that there could be no judgment until the same was so entered upon the records, and that, being such, it was void and of no effect "because forbidden by our Sunday statutes." Turning our attention to the first proposition, it should be noted that both proceedings to correct the record were had before the judge had signed the record. Under the provisions of section 243 of the Code, power is conferred upon the trial court to amend the record at any time before it is signed by the judge. The very requirement of the statute that the record be signed by the judge presupposes his right and duty to make such corrections as shall conform to the very truth. If a judge should make a correction in the first instance, and afterwards discover that there was an error in the correction itself, we see no reason on principle why he has not the same power to amend the correction as he had to make it in the first instance; and this is especially true where the amendment is made to correct an evident mistake. Such a correction may be made even after the record is signed by the judge. Code, section 244; Shelley v. Smith, 50 Iowa 543; Fuller v. Stebbins, 49 Iowa 376.

The proceedings adopted for such correction are not strictly adversary in their character. They are intended as a mere aid to the memory of the trial judge to make the record conform to the truth, and they are not necessarily controlled by the doctrine of prior adjudication. The res adjudicata is in the main case, and the purpose of a correction of the...