Wolmerstadt v. Jacobs

Seevers, J.

1. practice : court record.6 — I. . It is said, the court erred in setting aside the first order and judgment, and in overruling at a subse-

quent day the defendant's motion for judgment on the plea of tender. The statute provides that the court record “is under the control of the court, and may be amended, or any order therein expunged, at any time during the term at which it is made, or before it is signed by the judge.” Code, § 178. Under this section it has been held the court on its own motion may correct its record. Boals v. Shules, 29 Iowa, 507 . The court has the power to change the ruling made in sustaining a demurrer, upon discovering its mistake or error, and may expunge the first ruling from the record and make a different one. Brace v. Grady, 36 Iowa, 352 . But it is said, the court cannot anni *374 hílate facts for the .purpose of changing a prior ruling. This is undoubtedly true; but the court did not do so in the case at bar. As a fact, the tender existed at the second-as at the first ruling. When the latter was made, the court held that the defendant was entitled to judgment on the whole case. In making the second ruling, the court held that he was not entitled to such judgment. The legal effect of the tender was all that the court at any time decided. Conceding the first decision to have been erroneous, or made under a mistaken view of the law, we think it was not only the right of the court under the law, but its duty to the party wronged, and also to itself, on its own motion to correct the wrong or mistake.

oí^udgment ou‘ II. It is insisted by the appellant that the first decision was right, and that the court erred in changing such decision. a tender admits the amount tendered to be due, there is no doubt; and that if made in the whole case,-and not confined to any particular matter pleaded, the adverse party is, if he chooses to accept it, entitled to the amount tendered, and, if entitled to such right, entitled to judgment therefor, cannot be doubted. Gray v. Graham, 34 Iowa, 425 ; Wright v. Howell, 35 Id., 288; Babcock v. Harris, 37 Id., 409. There are other cases decided by this court to the same effect. None of them, however, go further than above stated. In the present case, as to one matter pleaded as a counter claim, the issue was triable at law, and as to this item either party was entitled to trial by jury; and this is so as to plaintiff’s action. The other matter pleaded presented an equitable issue, and was triable by the court. The tender simply admitted that, as to the equitable matter and issue, there was a certain amount due, and to this the defendant was entitled without any judgment therefor, if he chose to accept it. No judgment was essential. Such tender eliminated from the case the equit-. able issue. As to it there "was no longer any controversy. But it had no effect on the other- issues, simply because it had *375 no application thereto. Such issue remained for trial in the same manner and to the same extent as if no such defense' had been pleaded.

Affirmed.