Wachsmuth v. Orient Insurance Company of Hartford

• Decision Date: 05 November 1896
• Docket Number: 6787
• Citation: 68 N.W. 935,49 Neb. 590
• Parties: LOUIS C. WACHSMUTH ET AL. v. ORIENT INSURANCE COMPANY OF HARTFORD, CONNECTICUT
• Court: Nebraska Supreme Court

68 N.W. 935

49 Neb. 590

LOUIS C. WACHSMUTH ET AL. v. ORIENT INSURANCE COMPANY OF HARTFORD, CONNECTICUT

No. 6787

Supreme Court of Nebraska

November 5, 1896

ERROR to the district court for Wayne county. Tried below before JACKSON, J.

REVERSED AND REMANDED.

Montgomery & Hall, for plaintiffs in error:

The special finding of the court is a part of the record in the case and is binding between the parties. (Davis v Neligh, 7 Neb. 78; Birdsall v. Carter, 11 Neb 143; Rogers v. Sample, 28 Neb. 141; Scott v Chope, 33 Neb. 41; Smith v. First Nat. Bank of Chadron, 45 Neb. 444; Ganzer v. Schiffbauer, 40 Neb. 633; Smith v. Pinney, 2 Neb. 139; Thompson v. Connecticut Mutual Life Ins. Co. 38 N.E. 796 [Ind.]; Dowell v. Talbot Paving Co. 38 N.E. 389 [Ind.]; Condee v. Barton, 62 Cal. 1; Hayes v. Wetherbee, 60 Cal. 396; Ogburn v. Connor, 46 Cal. 346; Prince v. Lynch, 38 Cal. 528; Pralus v. Jefferson Gold & Silver Mining Co. 34 Cal. 558; Cowing v. Rogers, 34 Cal. 648; Hidden v. Jordan, 28 Cal. 301; Hathaway v. Ryan, 35 Cal. 188; Carpentier v. Gardiner, 29 Cal. 160; Vermule v. Shaw, 4 Cal. 214; Bosquett v. Crane, 51 Cal. 505; Brady v. Burke, 90 Cal. 1; Wunderlin v. Cadogan, 75 Cal. 617; State Sash & Door Mfg. Co. v. Adams, 47 Minn. 399; Pratt v. Pioneer Press Co. 32 Minn. 217; Jones v. Wilder, 28 Minn. 238; Swanstrom v. Marvin, 38 Minn. 359; Keep v. Sanderson, 12 Wis. 352; Williams v. Ely, 13 Wis. 1; Ottillie v. Waechter, 33 Wis. 252; Parks v. Wisconsin C. R. Co. 33 Wis. 413; Cramer v. Hanaford, 53 Wis. 85; Klatt v. Mallon, 61 Wis. 542; Etna Fire Ins. Co. v. Boon, 95 U.S. 117; North v. Peters, 138 U.S. 271; Martin v. Minnekahta State Bank, 64 N.W. [S.D.] 127; People v. Judge of Circuit Court, 34 Mich. 62; Calhoun v. Gilliland, 2 Wash. 174; Hathaway v. Ryan, 35 Cal. 188.)

Charles Offutt, contra.

References as to the validity of the special finding: Horn v. Miller, 20 Neb. 101; Everson v. Graves, 26 Neb. 264; Wiley v. Shars, 21 Neb. 715; Hamilton v. Armstrong, 20 S.W. 1054 [Mo.]; Kahn v. Smelting Co. 102 U.S. 641; Hodges v. Goetzman, 76 Iowa 476; Hartlep v. Cole, 120 Ind. 247; Brundage v. Deschler, 131 Ind. 174; Peninsular Land Transportation & Mfg. Co. v. Franklin Ins. Co. 35 W.Va. 666; Wheatland Mill Co. v. Pirrie, 89 Cal. 459; Masterson v. Cranitch, 66 How. Pr. [N.Y.] 171; Trudo v. Anderson, 10 Mich. 357; Thomas v. Sprague, 12 Mich. 120; Sisson v. Barrett, 2 N.Y. 406; Breeze v. Doyle, 19 Cal. 101; Emeric v. Alvarado, 64 Cal. 603.

OPINION

The facts are stated by the commissioner.

IRVINE, C. J.

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 decided and 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 has 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 plaintiff's 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,' 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 District 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 class. We must therefore adopt the last order as a proper correction of the journal. It then appears from the journal so corrected that the court entered a general finding for the plaintiffs assessing damages at $ 81.15, ordered judgment accordingly, and overruled plaintiff's motion for a new trial; that thereafter on the same day, but after defendant's counsel had left court and without any notice to the defendant or its counsel, at the request of plaintiff's attorney, the special finding was made. We do not think this procedure was warranted by the Code.

Numerous cases are cited in support of the court's action. Most of these cases, however, merely sustain the power of the court after judgment to supply defects and omissions in its record. Such action is equivalent to the action of the court which we have already held to be proper in correcting its record to disclose the facts, and if it had been made to appear that the court, in announcing its judgment had in fact made a special finding as to the value of the property before the fire, then it would have been proper even after judgment, by such an order, for the court to incorporate that finding into the record. But it is not claimed that any such finding was made. The supreme court of the United States in two cases well illustrates this distinction. In AEtna Fire Ins. Co v. Boon, 95 U.S. 117, 24 L.Ed. 395, the circuit court had, at the time of ordering judgment, filed an opinion wherein were informally stated...