Puckett v. Gunther

• Decision Date: 14 December 1907
• Parties: J. B. PUCKETT v. J. A. GUNTHER, Appellant
• Court: Iowa Supreme Court

114 N.W. 34

137 Iowa 647

J. B. PUCKETT v. J. A. GUNTHER, Appellant

Supreme Court of Iowa, Des Moines

December 14, 1907

REHEARING DENIED, TUESDAY, MARCH 17, 1908.

Appeal from Blackhawk District Court.-- HON. FRANKLIN C. PLATT Judge.

IN an action brought to recover damages for false and fraudulent representations in a contract for the exchange of properties the plaintiff recovered judgment on a verdict of the jury against the defendant. Thereupon the defendant served notice of an appeal from such judgment, his abstract showing the judgment to have been rendered on May 26, 1905, and notice of appeal to have been served and filed on July 10th following. On January 7, 1907, the plaintiff applied by motion to the district court in which the judgment was rendered to have the record of such judgment corrected so as to show that it was not actually entered until October 1, 1905, and after hearing on this application, which was resisted by the defendant, the court made its finding in accordance with the contention of the plaintiff, and ordered that the clerk note on the record of the judgment that the same was entered of record on October 1, 1905. From this order the defendant has appealed and the two appeals, the one from the original judgment, and the other from the order as to the record of entry of such judgment, are submitted together. Order directing entry of date of judgment affirmed. Appeal from the judgment dismissed.

Order affirmed, and defendant's appeal from the judgment dismissed.

Reed & Tuthill and Courtright & Arbuckle, for appellant.

Mears & Lovejoy, for appellee.

OPINION

MCCLAIN, J.

We are concerned first with the question raised on the second appeal as to the right of a trial court to modify or change the record of the judgment involved in the first appeal so as to show that the judgment was not in fact entered until after notice of appeal from that judgment was served.

The claim of the appellee is that under Code, section 4127, the lower court had the power to perfect its record so as to show the facts with reference to the date of the entry of the judgment; but it is contended for appellant that this power exists only by virtue of statute, and that the time for its exercise is limited by Code, section 4093, to one year. The court has the inherent power, not only to correct or modify its records so as to make them speak the truth, but also to make them show a fact which may become essential in determining whether an appeal is premature or has been taken too late. Code, section 4127, is simply a statutory recognition of this power and a regulation of the method of its exercise. That section is found among those regulating procedure in the Supreme Court, and relates primarily, if not exclusively, to the perfection of the record for the purposes of an appeal. Without such statutory provision it might, perhaps, be doubtful whether, after the taking of an appeal, the trial court would...