Silva v. Second Judicial Dist. Court in and for Washoe County

• Decision Date: 05 April 1937
• Docket Number: 3181
• Parties: SILVA v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY et al. [*]
• Court: Nevada Supreme Court

66 P.2d 422

57 Nev. 468

SILVA v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY et al. ^[*]

No. 3181

Supreme Court of Nevada

April 5, 1937

Original proceeding by Stella B. Silva for a writ of mandamus directed to the Second Judicial District Court of the State of Nevada in and for the County of Washoe, and the Honorable Thomas F Moran, Judge of Department 1 thereof.

Peremptory writ of mandamus issued in accordance with opinion.

Price & Merrill, of Reno, for petitioner.

Wm. M Kearney, of Reno, for respondents.

DUCKER Justice.

This is an original proceeding in mandamus.

On August 18, 1931, in the respondent court the respondent judge, presiding, petitioner was granted a decree of divorce from Manuel B. Silva, which decree disposed of the custody of the minor children of the parties. The petition also shows that in its pronouncement from the bench the court reserved jurisdiction to modify its decree with respect to the custody of the minor children, and amounts to be paid for their support; that in the written document subsequently signed by the court entitled, a "Decree of Divorce" and filed with the clerk of the court, no such reservation of jurisdiction was made; that in July, 1935, the omission was called to the attention of the respondent court and judge, but no correction of said court and judge, in chambers, an order was made; that in November, 1936, petitioner specifically requested of said court and judge, in chambers, an order for correction of said document in order that it should correctly set forth the decree as rendered, which request was refused; and, that on November 25, 1936, a motion duly made by petitioner to said court for such correction was heard, taken under advisement and denied.

A demurrer was interposed to the petitioner for insufficiency of facts to constitute a cause of action or to justify the issuance of a writ of mandamus. The questions raised by the demurrer will be incidentally determined by our conclusion on the merits.

The return denies that the court in rendering the decree reserved jurisdiction to modify it in respect to the custody or support of the minor children. It avers, inter alia, that the parties by agreement on the 13th day of August, 1931, made a complete and amicable settlement as to all matters with reference to the future maintenance, support, and education of the minor children, which agreement is now in full force and effect; that the complaint so alleged; that the court so found and in its decree ratified and confirmed said agreement. The return admits that no reservation of jurisdiction as to the children was made in the decree as entered.

On the hearing in this court a copy of the minutes of the trial court signed by the respondent judge, certified by the clerk, was introduced in evidence by petitioner. The following appears therein: "The court being fully advised in the premises ordered that the decree of divorce be granted to the plaintiff. It appears to the satisfaction of the court that the parties have entered into an agreement as to the custody and maintenance of the minor children and the court deeming it to the best interests of the parties, adopts, the same, retaining jurisdiction over the amount of support and custody of the children."

The proceedings of the trial taken down by the court reporter, transcribed and filed in the cases, are also in evidence here, and reveal the following:

"The Court: Who should have the children?

"Mr. Rosenthal: (Attorney for plaintiff, petitioner here.) The mother is given the custody of the younger child, and the father is to retain custody of the two older children.

"The Court: I will approve it, but I will retain jurisdiction. Judgment for plaintiff and against the defendant, granting to the plaintiff a decree of divorce dissolving the bonds of matrimony now and heretofore existing between Stella B. Silva, plaintiff, and Manuel B. Silva, defendant, and restoring said parties to the status of unmarried persons. The parties have entered into an agreement concerning the property and minor children. The court reserves the right to make whatever orders may be deemed necessary concerning the custody of the minor children hereafter."

In fact the reservation of jurisdiction in the rendition of the decree as to the minor children, was conceded by the trial court in a written opinion denying the motion made on November 25, 1936; and, also in another written opinion in which a motion by petitioner was denied on August 24, 1935. In the latter the court said: "We are inclined to believe that the court, by its judgment or pronouncement from the bench in the original case, indicates what it adjudicated; in doing so it expressly retained jurisdiction of the minor children owing to the fact that the parties did not indicate what the agreement was concerning the custody of the children."

In the same opinion the court also said: "The record in the case at bar clearly shows that the minute order was not fully produced in the written judgment, and there is not anything in the judgment, authorizing its omission. Therefore, we are compelled to concede that the omission was due solely to oversight on the part of the attorney who prepared the judgment and possibly due to the hasty manner in which the court reads judgments of the nature now in question. We feel that the court retained jurisdiction."

It thus clearly appears that the decree rendered included a reservation of jurisdiction as to the custody and support of the minor children and that it was omitted from the decree which was entered. Petitioner contends that this omission is a clerical error, and as it appears from the record, the trial court may at any time, and it is its duty to, amend the decree accordingly. We are of this opinion. It was held by this court at an early period, Sparrow & French v. Strong, 2 Nev. 362, that the court will at all times correct a mere clerical error, which can be corrected from the record itself.

In Ex parte Breckenridge, 34 Nev. 275, 118 P. 687, 688, Ann. Cas.1914B, 871, it was held that the insertion of the word "days" after the word "thirty" in the entry of the judgment by a justice of the peace, to make it conform to the judgment rendered was not improper. The court said: "The fixing of the punishment and the announcement of the judgment were within the judicial powers of the court; the entry of the judgment was a mere ministerial act, and the omission of the word 'days' was merely a clerical mistake, which could be corrected to conform to the sentence rendered." The court said further: "A mere clerical error or mistake arising from inadvertence may be corrected by the court on its own motion, so as to make the judgment speak the truth, even after the term." Citing 23 Cyc. 864; Humboldt M. & M. Co. v. Terry, 11 Nev. 237.

The general rule is that the power of a court to correct mere clerical errors in its judgment or decree may be rightly exercised at any time. Lindsay v. Lindsay, 52 Nev 26, 280 P. 95, 67 A.L.R. 824. See list of cases supporting this rule on pages 838, 839, 840, of...