Boust v. Superior Court

MELVIN, J. These are two petitions for writs of mandamus in cases so similar that we need discuss only one of them, applying our reasoning to both. In ease “S'. F. No. 6087” there is an application for mandate to be directed to the superior court of Kern County for the insertion nunc pro tunc as of September 28, 1911, in the caption and in the body of a certain judgment of the names of a number of defendants, and commanding that an alias writ of restitution issue in accordance with such amended judgment. The action in which the above mentioned judgment was issued was one in forcible entry and. detainer. A demurrer in the names of all of the defendants was filed and after its amendment was overruled. Subsequently P. Katz and Julia Miller, who had been served with summons under fictitious names, filed a demurrer signed by one of the attorneys who had theretofore appeared for the defendants. This demurrer was never formally heard by the court. The defendants answered, entitling their pleading “E. J. Boust et al., vs. W. E. So Belle, C. A. Stubblefield, et al.,” and later, without leave of court, left with the clerk a so-called amended answer. They then sought the court’s permission regularly to file this amended pleading, but their motion in that behalf was never finally disposed of. After the overruling of the amended demurrer, the attorneys who had appeared at the argument thereof withdrew, under the court’s permission, from the representation of several defendants. The plaintiffs in the action (petitioners here) moved for a judgment on the pleadings, and after a hearing of their motion the court granted it. The judgment which followed was entitled in the abbreviated form, referring to defendants as “C. A. Stubble-field et al.” In the body of the judgment as entered the defendants were not designated by their names. From this judgment an appeal was taken. The notice of appeal named a number of defendants, including four of those whom the attorneys had theretofore declared that they had ceased to represent. In the body of the document was a recital that “the defendants in the above entitled action” and also certain *345 defendants who had been served with summons under fictitious names (including Miller and Katz whose demurrer remained undecided) appealed from the judgment. This appeal was dismissed by written consent of an attorney of record for defendants on November 20, 1911. On November 27, 1911, these petitioners made a motion in the superior court of Kern County, that the judgment as entered should be amended by inserting .the names of the defendants against whom, in truth and in fact, the judgment was ordered, and that said names should be placed in the record nunc pro tunc as of September 28, 1911, the date of the granting of the motion for judgment on the pleadings. This motion was denied. The clerk of the court refused to issue a writ of restitution except in a form following the judgment as entered. Such writ was issued. Petitioners contend that the failure to insert the names of the defendants in full in the judgment was a clerical misprision which the court was bound to correct upon proper application. It was held many years ago by this court that where a judgment as first entered failed to name the defendants who were personally liable for a debt, but the record did show who they were, the court might at any time amend the judgment in such manner that it should properly designate such defendants. (Leviston v. Swan, 33 Cal. 484.) We know of no departure from the principle of that decision. Indeed this court has always displayed the utmost liberality in per‘mitting such amendments in the furtherance of justice, and will of course require them to be made for like purpose when the superior court has refused to perform a plain duty. The power of the court to correct an entry of judgment so that it may accurately express the judgment declared'by the court may be exercised either before or after an appeal has been finally determined, provided, of course, that the amendment does not affect substantial rights of the defendant, but consists in the rectifying of a clerical mistake appearing on the face of. the record. (City and County of San Francisco v. Brown, 153 Cal. 651, [96 Pac. 281]; Fallon v. Brittan, 84 Cal. 514, [24 Pac. 381]; Fay v. Stubenrauch, 141 Cal. 575, [75 Pac. 174]; Bolling & Son v. Speller, 96 Ala. 271, [11 So. 300].) That the court below should be required by mandamus to correct the entry of judgment so that it may conform *346 with the facts admits of little doubt. The only question remaining is whether or not such correction should include all of the names of original defendants that are proposed by petitioners. The attorneys for respondent contend that, in any event, the judgment should not include the names of Katz and Miller, whose demurrer was never decided, and those of the parties whom they had ceased to represent at the proceedings in the lower court. The obvious answer to this is that all of these parties were before the court, no matter who represented them, and the general judgment operated against all of them. The entry of judgment against the two demurrants before decision of the demurrer could in no event be more than mere error, and as they were parties to the appeal which was dismissed by their consent, they cannot be heard to complain because the corrected entry of judgment shall contain their names. If the unrepresented defendants were improperly included in the judgment by reason of lack of notice or other cause, that was error which might have been corrected on appeal, or perhaps set right by appropriate proceeding in equity. They were before the court and the judgment general in its terms applied to them. The judgment should be corrected by inserting in the caption and the body thereof the names of those defendants who appeared by demurrer as shown in the record before us. The judgment, as we have said, was sufficiently general in its terms to include all of these parties. Indeed, all but three or four of them formally appealed from it and through their attorney consented to the dismissal of the appeal. Respondent complains that the proposed form of the new entry of judgment which in the petition we are asked to adopt, differs in phraseology from the original, and that it contains names not warranted by the record. We find no material variation in the language between this and the original entry, and the names that the petitioners ask to have inserted are those of parties who formally appeared at some stage of the case prior to the entry of judgment. We do not think that the proposed form is essentially different from one that the court might draft of its own motion upon inspection of the records. Gay v. Torrance, 145 Cal. 153, [78 Pac. 540], cited in behalf of respondent, is not at all in point. In that case *347 the writ was refused because part of the relief desired was the adoption of an offered bill of exceptions containing some relevant affidavits and others which were wholly improper. There is no force in the argument that because, according to the answer, the judgment was not made in open court, it cannot now be corrected. The judgment as entered recites that certain things were “ordered, adjudged and decreed”— words appropriate to a judgment duly given by proper authority at the proper place. Upon its face it was duly made, and it cannot now be successfully attacked collaterally. In Norwood v. Kenfield, 34 Cal. 331, and Carpenter v. Nutter, 127 Cal. 64, [59 Pac. 301], cited by respondent, the matter of the proper place of transacting judicial business was directly involved in the appeals. Those cases are, therefore, not authority for respondent’s position here. A number of other arguments are made by respondent Avhich might have been available by the defendants in the discussion of their case on appeal, but these have no place in this proceeding. Our attention is called to an alleged discrepancy between the area of land mentioned in one of the complaints and that set forth in the judgment in said case; but this matter is not in issue as it appears neither in the petition for the writ nor the answer thereto. What has been said in this opinion applies also to case “S. F. No. 6086." Let the writs issue as prayed. Lorigan, J., Angellotti, J., Henshaw, J., and Shaw, J., concurred.