Welch v. Keene

• Decision Date: 12 February 1889
• Citation: 8 Mont. 305
• Parties: WELCH et al. v. KEENE.
• Court: Montana Supreme Court

8 Mont. 305

WELCH et al.

v.KEENE.

Supreme Court of the Territory of Montana.

Feb. 12, 1889.

Appeal from district court, Lewis and Clarke county.

At the October term, 1881, of the district court of the county of Meagher, the respondents recovered a judgment against appellant for 225 inches of the waters of Duck creek, “miners' measurement.” The judgment followed the language of the complaint, and was based upon the special finding and evidence in the case. Appellant, feeling aggrieved, in due time made his motion, and filed his statement of the evidence, for the purpose of obtaining a new trial. On the 4th day of October, 1883, the court overruled said motion for a new trial, and the appellant thereupon appealed to the supreme court, where the same remained pending until 1884, when such appeal was dismissed. After the dismissal of this appeal, respondents obtained, as soon as practicable, an execution, and, upon motion of appellant, said execution was quashed by the court, upon the ground that the term “miners' measurement” was not specific and certain enough to enable said decree to be executed. This motion was sustained on the 18th day of December, 1884. Before the next term of court respondents filed their motion, notice of motion, and petition for correction of the decree, which were duly served. Appellant appeared, and the case was transferred to the county of Lewis and Clarke for the purpose of hearing said motion and petition. No counter-affidavits were filed, and no answer made to said petition and complaint. The hearing of the motion remained in that court until the 25th day of November, 1887; when the court, upon the motion, petition, affidavits, and evidence so preserved in the records of said cause, amended said decree so as to relive it of the ambiguity or uncertainty complained of, and enable the same to be executed. The only question presented to this court is, did the court below have jurisdiction to amend the decree?

Chumasero & McCutcheon, for appellant.

Shober & Adams and E. W. Toole, for respondents.

BACH, J., (after stating the facts as above.)

We do not doubt the soundness of the rule that the trial court cannot at a subsequent time so modify a judgment that the modification is in effect a reversal. That is the province of the appellate court. But the trial court has the power to modify or correct the judgment or record to such an extent that the relief granted may be such as was intended to be granted. This doctrine has already been announced by this court in several cases. See Territory v. Clayton, 8 Mont.-, 19 Pac. Rep. 293, and cases there in cited. The court below, in granting this motion, based its action upon all the testimony in the case; which...