Durning v. Burkhardt

Lyoít, J. That portion of the judgment which directed that the dam be abated, was never authorized by the court. On the contrary, the court held, and so instructed the jury, that at the time of the trial the dam was a lawful structure. If it was then a lawful structure, no judgment to abate it could be properly entered. The foregoing instruction and ruling is a part of the minutes of the court, and is equivalent to a certificate that the removal of the dam is unnecessary. R. S., ch. 144, sec. 1. It is even more than that. By giving such instruction, the court certified in its minutes that the abatement of the dam would be unlawful. The court had no power, at a term subsequent to that in which the judgment was entered, to review the judgment on the merits, and to correct its own errors. Although the judgment was entered in vacation, yet it must probably be considered as having been entered' during the term at which the action was tried. Had it been entered in accordance with the rulings and decision of the court, an error therein could only be corrected, after the term at which it was entered, by this court on appeal or writ of error. But it was competent for the circuit court, at a subsequent term, to correct the judgment so that it should conform to the decision of the court. The power to do so is well established. Ætna Life Ins. Co. v. McCormick, 20 Wis., 265. The ruling and judgment of the court was, that the dam is a lawful structure. The judgment entered by the clerk is, that it is an unlawful structure, that is to say, that it ls a nuisance, and must be abated. The court never having rendered or authorized any such judgment as was entered, it [589] clearly had the power to correct it at a subsequent term; and it must be presumed, in favor of the jurisdiction of- the circuit court and of the regularity of .its proceedings, that the judgment was modified on that ground, and not on the merits. On this appeal we can go no farther than did the court below. "We cannot here determine whether the plaintiff is or is not entitled to a judgment abating the dam. That can only be done on an appeal from the judgment itself. The only questions we can determine are, whether the circuit court had power to modify the judgment at a subsequent term so that it should conform to the rulings and decisions of the court upon the trial, and whether it has done so. We are clearly of the opinion that both of these questions must be answered in the affirmative, and that the order appealed from should therefore be affirmed. This case, in respect to the questions which may properly be considered on this appeal, is unlike that of Cobb v. Smith, 23 Wis., 261. There the judgment was modified on the merits by the circuit court; and my recollection is, that the cause was tried and the judgment entered and afterwards modified, at the same term. If not so, the court passed upon the merits of the judgment without objection, and modified it, not because it did not conform to the previous decision and direction of the court, but because it was erroneous. Hence it was entirely proper for this court, on appeal from the order modifying the judgment, to determine the whole merits of the case. By the Court — Order affirmed.