Schulze v. Oregon Railroad & Navigation Co.

Root, J. This cause came on for trial before the judge and jury in the trial court, and resulted in a verdict for plaintiffs, against all the defendants excepting John Bums and J ames Bums, who were dismissed from the action before the verdict was returned. Judgment thereafter, to wit, on the 27th day of December, 1904, was entered against all of the defendants. Thereafter an appeal was taken from said judgment to this court, which appeal was dismissed, on the 28th day of April, 1905. On the 11th day of September, 1905, [617] the appellants Oregon Railroad & Navigation Company, John Bums, James Bums, and Bums Brothers, a copartnership, filed a motion in the superior court to vacate and modify the judgment which had been entered on the 27th of December, 1904, basing their motion on several grounds. On the 13th of September, 1905, the respondents filed a motion in the superior court to amend, nunc pro tunc, the judgment entered December 27, 1904, in such a manner as to eliminate the names of James Burns and John Bums as judgment debtors, and to show that the action had been dismissed as to said James Bums and John Bums. The court denied the motion of appellants, and granted that of respondents. Thereafter appellants appealed from what they term the “judgment rendered and entered on September 20, 1905, modifying said judgment and order of December 27, 1904, and from said judgment and order of December 27, 1904, as modified.” The Oregon Railroad & Navigation Company appeals in its behalf. John Bums and James Bums join in a separate apipeal, and Bums Brothers, a copartnership', prosecutes still another appeal. The respondents move to dismiss all of these appeals. They contend that the order of the court made September 20, 1905, made no change whatever in the judgment of December 27, 1904, in so far as it affected the rights or interests of the appellant the Oregon Railroad & Navigation Company, or the appellant Burns Brothers, a copartnership.. They contend that said order of September, 1905, could not be appealed from by James Bums and John Burns, for the reason that it was an order in their favor and had the result of making the judgment of December, 1904, one of dismissal as to them. They urge that the appeals could in noi wise be effective for the purpose of reviewing the judgment of December, 1904, inasmuch as the time for taking an appeal from said judgment had.expired long before these appeals were taken, and that the appeals from the order made in September could not [618] authorize or justify a review iu auy manner of the judgment of December, 1904. We think the contention of respondents must be sustained. The presence of the names of James and John Burns as judgment debtors in the judgment entered in December, 1904, was clearly the result of inadvertence. The only effect of the order of September, 1905, was to correct this mistake. The action which the court took iu thus making the record speak the truth could in no wise injure the other appellants, or in any manner impair or affect their rights. The judgment, as to them remained as entered in December, 1904. The time for appealing from that judgment had expired long before these appeals were taken. So far as James and John Burns are concerned, the order of September, 1905, had for its purpose the correction of the judgment entry of December, 1904, so that it would speak the truth and show that the action was dismissed as to them. Hence, they were not aggrieved by this order, and no relief could be accorded them upon appeal to this court. The respondents’ motions to dismiss the appeals herein are granted. Mount, C. J., Dunbar, Crow, Hadley, and Fullerton, JJ., concur.