Wyllie v. Kent

• Decision Date: 07 October 1915
• Citation: 28 Idaho 16,152 P. 194
• Parties: GEORGE P. WYLLIE, Appellant, v. W. W. KENT, Water-master, et al., Respondents
• Court: Idaho Supreme Court

152 P. 194

28 Idaho 16

GEORGE P. WYLLIE, Appellant, v. W. W. KENT, Water-master, et al., Respondents

Supreme Court of Idaho

October 7, 1915

JUDGMENTS AND DECREES-CLERICAL MISTAKES AND ERRORS THEREIN-AMENDMENTS AND CORRECTIONS.

1. Where, through mistake, there has been a failure to enter the judgment pronounced, the court has power to correct the matter and to order the proper entry made. Clerical mistakes can be corrected in this manner, but judicial errors can only be remedied by motion for a new trial or upon appeal.

[As to amendment of judgment or record, see notes in 62 Am.St. 233; Ann.Cas. 1914A, 605. As to amendment by nunc pro tunc order see note in Ann.Cas. 1915A, 522]

APPEAL from the District Court of the Sixth Judicial District for Custer County. Hon. J. M. Stevens, Judge.

Suit to procure summary adjudication of water rights. Amended decree entered. Reversed.

Judgment and order reversed and a new trial granted. No costs awarded.

Hansbrough & Gagon, for Appellant.

The power of a court to amend its own record is limited to such changes or corrections as are in affirmance of the judgment originally entered; and where the judgment expresses the entire judicial action taken at the time of its rendition the court has no authority to enlarge or diminish it, to make a change or modification in matter of substance, or under the guise of amendment to review the case and render a different judgment. (23 Cyc. 868; Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7; Browder v. Faulkner, 82 Ala 257, 3 So. 30; Gibson v. Wilson, 18 Ala. 63; De Castro v. Richardson, 25 Cal. 49; Morrison v. Dapman, 3 Cal. 255; In re Potter Estate, 141 Cal. 424, 75 P. 850.)

A judgment therefore cannot be amended so as to vary the rights of the parties as fixed by the original decision. (23 Cyc. 969; Heath v. New York Bldg. Loan Banking Co., 146 N.Y. 260, 40 N.E. 770.)

The object of entering judgments and decrees of some previous date is to supply matters of evidence and to rectify clerical misprisions, and not to enable the court to correct judicial errors. If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper judgment, it has no power to remedy such errors by ordering an amendment nunc pro tunc of a proper judgment. (Freeman on Judgment, secs. 61-68; In re Skerrett's Estate, 80 Cal. 62, 22 P. 85; Leonis v. Leffingwell, 126 Cal. 369, 58 P. 940; Cowdery v. London etc. Bank, 139 Cal. 298, 96 Am. St. 115, 73 P. 196; In re Potter Estate, 141 Cal. 424, 75 P. 850.)

It is clear in this case that the court's modification of the judgment was an attempt to correct what the court considered a judicial error, and this is not permissible under the law, as judicial error can be remedied only through motion for a new trial or on appeal. (Egan v. Egan, 90 Cal. 15, 27 P. 22; O'Brien v. O'Brien, 124 Cal. 422, 57 P. 225; Canadian etc. Trust Co. v. Clarita Land etc. Co., 140 Cal. 672, 74 P. 301.) Court has no power, after entry of judgment, to correct judicial omissions or mistakes. (First Nat. Bank v. Dusy, 110 Cal. 69, 42 P. 476; Byrne v. Hoag, 116 Cal. 1, 47 P. 775.)

Higgins & Ambrose and Chase A. Clark, for Respondents.

As to the right of the court to modify and change the findings of fact, conclusions of law and judgment; Wilcox v. Wells, 5 Idaho 786, 51 P. 985; Strode v. Miller, 7 Idaho 16, 59 P. 893; Ward v. Clay, 82 Cal. 502, 23 P. 50, 227.

"It is within the discretion of the court, by resettling a judgment, to correct errors therein caused by inadvertence." (Granite State Provident Assn. v. McHugh, 88 Hun, 617, 34 N.Y.S. 341.)

Unless the discretion of the court can be shown to have been abused, the action of the court in modifying and amending a judgment signed through mistake and inadvertence is not error, especially when, as in this case, the transcript of evidence supports the final judgment of the court. (Murphy v. Russell & Co., 8 Idaho 133, 67 P. 421; Nicoll v. Weldon, 130 Cal. 666, 63 P. 63.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This action was commenced by appellant pursuant to the provisions of chap. 224, Sess. Laws 1911 (p. 708), authorizing the summary adjudication of such water rights as have been omitted from a decree determining the priority of rights to the use of water.

The respondent, Kent, is the water-master who has charge of the distribution of the waters in controversy. He appeared in the action by general demurrer and thereafter defaulted. In response to the published notice provided for by said chap. 224, the respondents, Alta M. Rockwell and C. C. Rockwell, her husband, appeared and filed their answer and cross-complaint, which was answered by appellant.

The case was commenced in Custer county and was, by stipulation of the parties, transferred to Bingham county, where it was tried by the court without a jury.

On August 2, 1913, the court filed its findings, wherein it found, among other facts, that appellant is the owner of the west half of the southeast quarter and the south half of the southwest quarter, section 28, township 7 N., R. 25 E., B. M., in Custer county, Idaho; that the land is arid, and that for the purpose of irrigating it appellant's predecessor in interest appropriated all, or about 80 inches or its equivalent in cubic-feet per second of time, of the water of what is known as Junction Springs creek or Jensen Springs creek (sometimes called by either name and which will hereafter be referred to as Junction Springs creek), and constructed ditches therefrom to and upon his land for the irrigation thereof; that ever since that time appellant and his predecessor in interest have continued to use the entire flow of the stream for the irrigation of his land, except in the year 1912, when hindered and deprived of the use of a portion thereof by respondents; that a greater portion of appellant's land is of a porous and gravelly nature and requires two inches of water per acre to properly irrigate it; that about 90 acres thereof can be irrigated from no other source of supply than the stream in question, and that appellant and his predecessor have never had sufficient water by the use of practically all of the available supply to irrigate the 90 acres aforesaid; that appellant and his predecessor in interest in about the year 1900, for the better irrigation of his land, built a small reservoir, and that he is the owner and entitled to the use and control thereof as against the respondents and all other persons, and that the respondents, nor either of them, have any interest therein.

The court further found that the waters of Junction Springs creek and of Big Lost river were decreed by the district court in the March, 1902, term thereof, in the case of S. T. Moe et al. v. Henry Harger et al., and that there was decreed to the grantor of appellant from Big Lost river the use of 100 inches of water for the irrigation of a portion of his land, and by inadvertence and mistake the use of only 40 inches of the flow of said creek, instead of the entire flow thereof consisting of about 80 inches of water, was decreed to him; that appellant and his predecessor in interest have ever since the date of the decree down to the year 1912 continued to use the whole flow of the creek for the irrigation of his land, and that...