Williams v. Hayes

Tayloe, J.

The materiality of the amendment of the judgment arises out of the fact that the plaintiff, shortly after his equitable action was dismissed with costs, sued out a common-law writ of certiorari to review the proceedings of the defendants in laying out and opening said ditch through the plaintiff’s lands, and the judgment as originally entered in this action is pleaded as a bar to the proceedings upon such writ. The learned counsel for the appellants contend that the circuit court had no authority to amend the judgment in the manner specified in said order. Among other reasons urged against the power of the court to make the order are the following: “(2) The judgment cannot be modified or corrected, after the term at which it was rendered, to add. anything omitted by the court or to carry out his unexpressed intentions, but only to correct errors of the clerk in entering its judgment.” “ (5) If anything was omitted from the judgment by the clerk, it could only be supplied by motion within one year from notice of the judgment. (6) The order modifying and correcting the judgment is not warranted by the moving papers. The avowed object of the latter is to have the words ‘ upon the merits ’ expunged from the judgment. The order taken seeks to add to the judgment a new clause and condition. (I) The respondent has forfeited all right, if he ever had any, to a modification of the judgment, by laches.”

We do not deem it necessary to cite authorities to show that the court has no authority to change its judgment, as pronounced by the court, after the term in which it was rendered. This is admitted by all parties. But it is urged by the respondent that the court may, after the lapse of the term at which judgment is rendered, correct any mistake made in the entry thereof which is in conflict with the judgment actually pronounced by the court. This latter proposition is fully sustained by the decisions of this court cited in the respondent’s brief. Wyman v. Buckstaff, 24 *253 Wis. 477 ; Ætna L. Ins. Co. v. McCormick, 20 Wis. 265, 268 ; Durning v. Burkhardt, 34 Wis. 585 ; Quaw v. Lameraux, 36 Wis. 626, 629 ; Will of Gole, 52 Wis. 591, 592 . These cases fully establish the power of the circuit court to correct any mistake made in the actual entry of the judgment, which is in conflict with the judgment as pronounced by the court, and they also establish the rule that such mistake may be corrected after the expiration of a year after notice of the judgment rendered. Whether the party who prepared the judgment and caused the same to be entered by the clerk, could, on his motion, have such judgment corrected after the lapse of one year from, the entry thereof, is a question not decided in this case. The evidence does not clearly show that the respondent had actual knowledge of the form of the judgment as entered by the clerk within one year after its entry. However that may be, he is not necessarily limited to the year within which to move to have the judgment corrected. We think it very clear that, upon the facts of the case, the circuit court had authority to hear the motion, and to grant such relief as the respondent was entitled to under the facts.

The learned counsel for the appellants insist that the judgment entered by the clerk was in conformity to the judgment as pronounced by the court, and therefore it was error to change it after the term at which it was entered had passed. After a careful reading of all the minutes of the reporter, of the clerk, and of the motion as made by the appellants, it appeal’s to us very clear that the only judgment pronounced by the court, upon the motion of the appellants, was “that the complaint be dismissed with costs.” The judgment entered by the clerk was that the complaint be dismissed “ upon the merits,” with costs to the defendants.

It is insisted by the learned counsel for the appellants that there is no difference in the law between a judgment *254 dismissing the complaint with costs, and one dismissing the complaint “ on the merits ” with costs. If this proposition be good law, there could be no reasonable complaint as to the form of the judgment as entered by the clerk, and the judgment would be substantially the judgment pronounced by the court. After an examination of the authorities cited upon this point by the leaimed counsel for the respective parties we are not satisfied that a judgment simply dismissing the complaint in an equitable action is conclusive that the same was dismissed upon the merits, and is in all cases equivalent to a dismissal of the complaint upon the merits; and we are disposed to hold that the addition of the words “upon the merits” was a material addition to the judgment, and, if not directed to be so entered by the judge in pronouncing his judgment, the clerk had no authority to insert them in the judgment. There is at least so much uncertainty as to the conclusiveness of a judgment simply dismissing the complaint in an equitable action as a bar to a future action involving the same subject matter, that we are not disposed to determine the matter finally upon the motion made in this case. The effect of the judgment as á bar to further proceedings of the respondent in his certio-rari proceedings must be determined in that action, when produced in evidence as a bar to that proceeding. The following authorities have a bearing upon that question: Carter v. W., St. L. & P. R. Co. 131 Mass. 187 : Kempton v. Burgess, 136 Mass. 192 ; Foye v. Patch, 132 Mass. 105 ; Bur bank v. Woodward, 124 Mass. 357 ; Foster v. “The Richard Busteed,” 100 Mass. 409, 412 ; Perine v. Dunn, 4 Johns. Ch. 140 ; Holmes v. Remsen, 7 Johns. Ch. 286 ; Griswold v. Jackson, 2 Edw. Ch. 461 ; Lansing v. Russell, 13 Barb. 510 ; Mason's Ex'rs v. Alston, 9 N. Y. 28 ; People ex rel. Trainer v. Cooper, 8 How. Pr. 288 ; Bostwich v. Abbott, 40 Barb. 331 ; Burhans v. Van Zandt, 7 N. Y. 525 . See, also, the cases cited by the learned counsel for the appellants in their brief on this *255 point. As the words added by the clerk in entering the judgment may change the conclusiveness of such judgment as a bar to the plaintiff in his subsequent proceedings, the entry was unauthorized, and was properly stricken out upon the motion of the respondent.

TJpon an examination of the record and proceedings in this case had upon the trial, it seems plain to us that the only direction for judgment given or made by the court on the trial, after hearing the motion made by the defendants to dismiss the complaint, was that the complaint be dismissed with costs. This being so, it ii entirely immaterial, for the purposes of the motion to correct the judgment entered, that the learned judge supposed he was directing a judgment dismissing the action without prejudice to the right of the plaintiff to bring another action, or that he intended to direct such a judgment. It would be unsafe to permit judgments to be changed in a substantial matter, years after the same are entered, upon the mere recollection of the judge that he intended to direct a different one from that which he expressly directed at the time, and we do not find any case which sanctions such proceeding. Such a modification of the judgment is not correcting the judgment as announced at the time, but it is making the judgment conform to what the court ought to have adjudged, or to what he intended to adjudge but failed to adjudge. Such a change in a judgment can only be made during the term in which it was entered. Latimer v. Morrain, 43 Wis. 107 ; Selz v. First Nat. Bank, 60 Wis. 246 ; Schobacher v. Germantown F. M. Ins. Co. 59 Wis. 86 .

We are of the opinion that the court erred in modifying the judgment by stating in the order that it was dismissed “ because his remedy was at law and not by complaint in equity,” and without prejudice to the right to proceed at law to review the proceedings, and by inserting in the judgment itself .the words, “ but without prejudice to the *256 plaintiff’s proceeding at law to review the proceedings described in the complaint in this action.” The only relief the court should have granted upon the motion of the plaintiff was to strike from the judgment the words “ upon the merits.” This would leave the judgment such as was ordered by the court at the time it was announced. Whether the judgment, as so corrected and modified, will be a bar to the proceedings of the plaintiff on his writ of certiorari is a question which is not directly involved on this appeal, and is not decided.

See note to this case in 32 N. W. Rep, 44.— Rep.

By the Court.— The order of the circuit court is reversed, and the cause is remanded with directions to the circuit court to correct and modify the judgment by striking therefrom the words “upon the merits,” as indicated in this opinion.