Fryer v. Lambert

Hart, J., (after stating the facts). The decision of the chancery court opening and setting aside the decree, and the subsequent proceedings in the mortgage foreclosure suit as to the 40 acres of land in question, was correct. Gourts have a continuing power over their records not affected by the lapse of time. Should the record in any case be lost or destroyed, the court whose record it was, possesses the undoubted power, at any time after-wards, to make a new record. There is no reason why the same rule should not apply when, instead of being lost, the record was never made up, or was so made up as to express a different judgment than' the one pronounced by the court. Bobo v. State, 40 Ark. 224. In discussing this subject in the case of Hollister and Smith v. Judges of the District Court of Lucas County, 8 Ohio St. 201, the court said: “Every court of record has a supervisory and protecting-charge over its records and. the papers belonging to its files; and it may at :any time direct the correction of clerical errors, or the substitution of papers in case the originals are purloined or lost; and, in the exercise of the same authority, in case the records or files should be fraudulent or otherwise improperly altered o.r defaced, may direct their correction and restoration to their original condition. And, in making such corrections, the clerk is under the control and authority of the court. ’ ’ But such power must be exercised by the court, and the clerk of the court has no authority on his own. responsibility and without an order-or direction' of the court to amend, change, or correct the judgment record. 34 C. J. pp. 71 and 221 and cases cited. The reason is that a court cannot delegate its judicial functions to its clerk, so that he may alter or correct a .judgment record, except in a purely clerical way. This is not a case like .that of Kennedy v. Knight, 21 Wis. 340, 94 Am. Dec. 543, -where there was a clerical error in the judgment foreclosure describing one tract of land mortgaged as in range 4 east; whereas it should have been range 5 east. The court said that the false description would probably not vitiate a deed given of this tract, as the county, section, and township were correctly given, and that the error was purely clerical. In such cáse the clerk in correcting the clerical error is''presumed to act under the directions of the court. In the present case,, the error was not merely clerical,' but was substantial. There was no land in section 32 owned -or claimed to be owned by the defendants in the foreclosure suit, and they were advised by their attorneys that they need not make any defense to the action. The decree of the court described the land as being in section 32, and it was a mere nullity, in so far as it affected the land in section 30. The clerk transcended his authority in changing the decree from a decree of foreclosure of 40 acres of land in section 32 to-that of 40 acres in section 30, and what purports tó be, the corrected decree is without effect and absolutely void. Pressed Steel Car Co. v. Steel Car Forge Co., (3 Cir. Ct. of Appls.), 149 Fed. 182, and Rockwood v. Davenport, 37 Minn. 533, 5 Am. St. Rep. 872. ■ Counsel for the plaintiff in the foreclosure suit claims that the 40 acres of land in controversy are 'correctly described in the mortgage as being in section 30. Conceding this to be true, the plaintiff in the foreclosure suit could not avail himself of a foreclosure decree.of a different 40 acres of land.. If ■ the action of the clerk in altering the decree is a mere nullity, the case stands as if no foreclosure decree had been rendered with respect to the 40 acres in controversy. . ' . ; The action of the clerk, however, in changing the decree puts an apparent cloud upon the title of the defendants, and the court properly, after hearing the proof on the question, directed that the decree as altered by the clerk should be set aside, and,'inasmuch as'there was no proper foreclosure decree with respect to the 40 acres in controversy, gave leave to- the parties to proceed as if no such decree had ever been rendered or entered' of record. It follows that the decree must be affirmed.