Harvey's Heirs v. Wait

By the Court, Watson, J.: The power of the probate court to correct the record of its proceedings at a subsequent term, and make it conform to truth and the determination actually made at a preceding term, can hardly be questioned at the present time. (Freeman on Judgments, sec. 71; Dunning v. Burkhardt, 34 Wis., 588.) And it is equally certain that its action in this [121] respect cannot be assailed in a collateral proceeding. These propositions seem to us to entirely obviate the objections urged by the respondents, that the change or modification of the decree of November 4, 1880, attempted by the probate judge, should be presumed to have transpired during the November term, and therefore to be valid, it not appearing from the record that the term had previously expired, and that the court had no power to amend its record after the term. If the change or modification of November 16th was made during the continuance of the regular November term, it was valid, and the action of the court at the ensuing December term, amending its record so as to render wholly ineffectual the attempted change or modification of its original decree, was erroneous and unwarranted. The parties in this proceeding are bound by the action of the probate court in making the amendment, and cannot contest its regularity here. But the main question presented on this appeal is whether the decree of November 4, 1880, was final in its character, and this must be determined upon the intention of the probate court, to be ascertained from the terms of the decree itself, as we have already decided that there was no change or modification of it during the term at which it was rendered. There can be no controversy as to the principle governing the determination of this issue. In Rubber Company v. Goodyear, 6 Wall., 155, in passing upon this very question, the court say: “But we must be governed by the obvious intent of the circuit court, apparent on the face of the proceedings. We must hold, therefore, the decree of the 5th of December to be the final decree.” We are not unmindful that this very case has been cited by appellant’s counsel as a decision in his favor, [122] in view of the similarity of the facts to those in the case before us. But we tliinlc a close examination will disclose substantial differences. In the former, the first entry was in the form of an order entered in the minute book and contained the substance of the decision rendered. The second entry was made eight days afterwards, during the same term; was entitled “final decree,” and was in the appropriate form for a final decree, and besides contained a particular description of the patent rights, for the violation of which the action had been brought to recover damages, while in the first entry they were mentioned merely as “the patents in the case,” and also determined the amount of costs recovered, which was not done in the first entry. But in the case at bar, the second order was not made at the same term with the first, and does not contain any of its essential provisions. Without referring to the previous decree, it is impossible to tell what the rights and liabilities of the parties are. It is true the last order refers to the first as having been continued from the preceding term, but it does not assume to decide any issue or direct anything to be done which was covered by the first decree and can not be held to have been intended to supply its place "as a final decree, in any view of the matter. But if the second order were ever so formal and comprehensive and unequivocally denoted the intention of the court, when it was entered, that it should be deemed the final decree in the cause, still it could not be so held, in derogation of the effect of the first, equally formal and comprehensive in its provisions, and with equal force, evincing the intention of the court as to its final character. No court can be permitted thus to avoid the effect of its previous decisions after it has lost the power to further change [123] or modify them by direct methods. Now the decree of November 4, 1880, is in form a final decree. It ascertains and declares every liability and gives every needful direction. The appellant, by complying with its requirements, would have entitled himself to an immediate discharge, and. it is quite evident that the court so understood the effect of its proceeding. The last sentence containing the order for a continuance of the proceeding until the next term “for further proceedings” has no bearing in -opposition to this view. It does not indicate any purpose to alter or modify the provisions of the decree previously declared, or to reserve any of them for further consideration before making a final disposition of the matters involved. The further prpceedings mentioned in this order were evidently proceedings in addition to those already taken, and finally settled by the decree and in all probability referred solely to the discharge of the appellant on presenting proper vouchers, showing his compliance with the requirements of the decree. We therefore hold that the decree of November 4, 1880, was the final decree in this proceeding, and that it is dis- ■ tinct from the order of December 20, 1880, and there is nothing in this last order, considered by itself, from which an appeal will lie. The appeal not having been taken to the circuit court within thirty days from the entry of the final decree in this cause, it was rightfully dismissed. Decree affirmed.