Wachsmuth v. Orient Ins. Co.

• Decision Date: 05 November 1896
• Citation: 49 Neb. 590,68 N.W. 935
• Parties: WACHSMUTH ET AL. v. ORIENT INS. CO. ET AL.
• Court: Nebraska Supreme Court

49 Neb. 590

68 N.W. 935

WACHSMUTH ET AL.

v.ORIENT INS. CO. ET AL.

Supreme Court of Nebraska.

Nov. 5, 1896.

Syllabus by the Court.

1. A court has power, even after the term at which judgment was rendered, to correct its record for the purpose of making it disclose truthfully what occurred in the course of its proceedings.

2. A special finding made at the request of one party, after judgment and without notice to the adverse party, is absolutely void.

3. The assignment in a motion for a new trial that the finding is not sustained by the evidence does not, in an action on contract, raise the question of error in the assessment of the amount of recovery.

4. Section 565 of the Code of Civil Procedure, providing that a defendant may serve on the plaintiff or his attorney an offer in writing to allow judgment to be taken against him for a specified sum, and that if such offer be not accepted, and the plaintiff fail to obtain judgment for more than the offer, he shall pay defendant's costs from the time of the offer, contemplates that where there is only one defendant all costs from the time of the offer shall in such case be taxed against plaintiff.

5. In order to confer jurisdiction upon this court to review on error a judgment of the district court, there must be filed in this court a certified transcript of the judgment. A stipulation as to the character of the judgment, or a recital thereof in the petition in error, is insufficient.

Error to district court, Wayne county; Jackson, Judge.

Nine actions by Louis C. Wachsmuth and others against the Orient Insurance Company and eight other companies, in which separate judgments were rendered. Plaintiffs and defendant the Orient Insurance Company bring error and cross error, respectively. Reversed.Montgomery & Hall, for plaintiffs in error.

Chas. Offutt, for defendant in error.

IRVINE, C.

This was an action by the plaintiffs in error to recover on a policy of fire insurance. The policy had been written on a stock of merchandise. One of the issues litigated at the trial was the amount of the loss. It was claimed by the plaintiffs that a large portion of the goods had been totally destroyed, and an adjustment effected by the parties placed the value of goods saved from the fire at $7,925.05, and the damage sustained by those saved at $783.46. There was a large amount of concurrent insurance on the stock. The trial was to the court without a jury. The finding was made, motion for a new trial overruled, and judgment ordered the last day of the term. As entered, the finding was as follows: “Now, on this 21st day of April, 1893, this cause came on for trial, and the same, together with the eight other cases which by consent of the parties and order of the court were consolidated with this cause for trial, was tried and submitted to the court, a jury having heretofore been waived, upon the pleadings, the evidence, and argument of counsel; and now, being fully advised in the premises, the court finds specially that the goods, wares, and merchandise in stock and belonging to the plaintiff Augustus E. Orbeton, the destruction of and injury to which by fire is the subject of the controversy in this and the other actions consolidated with it, were, at and immediately before the fire in controversy, and their injury thereby, of the market value of $13,000. To which finding the defendant excepts. The court further finds generally upon the issues joined in this action, and in the other actions consolidated with this action for trial, in favor of the plaintiff, and assesses the total damage of the plaintiff in this and the other actions by reason of the destruction of a portion and the injury to the remainder of the said goods, wares, and merchandise by fire as alleged in the petition, at the sum of $783.46. To which finding the plaintiff excepts. And the court further finds that the plaintiffs in this and the said other actions are entitled to recover from the several insurance companies, defendants mentioned and described in the plaintiff's petition, the said principal sum of $783.46, together with interest thereon from the 26th day of January, 1892, being the sum of $68.55, both principal and interest amounting to $852, which should be apportioned among the said several insurance companies according to the face of the policies thereof, and that the proportion of said sum for which the defendant in this cause is liable to the plaintiff is the sum of $81.15. To which finding the plaintiff excepts.” This was followed immediately by the judgment and an order overruling the motion for a new trial. On the first day of the following term of court the defendant filed two motions. One was an objection to the judge's subscribing the journal as made up until the special finding fixing the value of the stock at $13,000 should be stricken out. As reasons for this it was urged that the entry did not state the true finding, that neither party had requested any finding, and that the case had been decidedand general finding made without any special finding. The other motion was a motion to vacate and modify the judgment as entered, for the same reasons. On the hearing of these motions the court directed that the order be corrected to read as follows: “After the court had made its general findings herein for the plaintiffs, and directed the entry of judgment for plaintiffs, and after the court had overruled the motion for a new trial and given the plaintiffs time to prepare bill of exceptions, and after the defendant and its attorney had left the court room, the court did make its only special finding on the same day, just before the adjournment of court, at the request of plaintiffs' attorney, in words and figures as follows: ‘Finding by the court that the goods in stock before the fire was of the value of $13,000.00;’ and without any notice to the defendant or its attorney.”

The plaintiffs, by their petition in error and in argument, now contend that the judgment entered is not supported by the findings, and that the special finding of the total value of the stock before the fire must be accepted, in connection with certain admissions in the pleadings, not here necessary to state, as fixing the amount of the judgment at a much greater sum than that for which it was rendered. In this connection they contend that the order made at the subsequent term was void for want of jurisdiction, and this on the ground that the court, by the adjournment of the trial term, had lost its control over the judgment. The order of the subsequent term was not, however, an order vacating or modifying the former judgment. It was merely an order correcting the record for the purpose of making it disclose what had in fact occurred. The plenary power of a court of record to so correct its records has been several times upheld. Brownlee v. Davidson, 28 Neb. 785, 45 N. W. 51;Hoagland v. Way, 35 Neb. 387, 53 N. W. 207;School Dist. v. Bishop, 46 Neb. 850, 65 N. W. 902. A true conception of the several questions presented on this phase of the case renders it important to bear in mind the distinction between an order of the court causing an incorrect record to be amended in such a manner as to show what in fact occurred, and an order, subsequent to the disposition of a case, incorporating a new occurrence or a new procedure. In the one case the court merely requires a correct recital of a proceeding actually had at the proper time, but not theretofore properly entered. In the other case the court undertakes at a subsequent time to supply a defect in the proceedings themselves. This order belonged to the former...