Christisen v. Bartlett

The opinion of the court was delivered by Mason, J.: Edwin Bartlett sued George J. Christi-sen in ejectment. A judgment was rendered for the defendant, which was immediately set aside, over his objection, upon demand of the plaintiff, by notice on the journal, the cause being then continued to the next term. A record was shortly thereafter made of these proceedings, stating that the judgment was rendered by consent of the plaintiff. The defendant then filed a petition in error in this court based upon the contention that, as the judgment had been given by consent of the plaintiff, the court had no authority to set it aside, the statute authorizing a second trial in eject-men having no application to such a case. On the first day of the next term the district court of its own motion, and without notice to the defendant, made an order reciting that the journal entry theretofore made was incomplete and in part untrue, and directing a new entry to be made in accordance with the actual facts. The journal was thereupon corrected in obedience to this order. The new entry showed in detail the circumstances under which the judgment had been rendered, and in particular recited that the plaintiff consented to its rendition only upon the condition that it should be immediately set aside upon his application. Still later the defendant filed a motion to set aside the order of correction, and gave the plaintiff notice of a hearing upon it. A hearing was had, both parties being represented, and the motion was denied. The pro [403] ceedings subsequent to the judgment are brought to our notice by supplemental transcripts. Two questions are presented — whether this court shall look to the original or to the corrected entry to learn the circumstances under which the judgment was rendered, and whether, under the facts as disclosed by whichever entry shall be held to control, it was error for the district court to set aside the judgment. The order of correction is objected to on three grounds: (1) That it was not in accordance with the real facts, and was not supported by sufficient evidence; (2) that it was made after the expiration of the term of court at which the judgment was rendered; (3) that it was made without notice to the defendant. The first two objections are covered by the decision of this court in Martindale v. Battey, ante, p. 92, where it was held that the record of a judgment can be corrected so as to speak the truth after, as well as during, the term at which it was rendered, and upon any satisfactory evidence, parol as well as written, although it was noted that there have been many decisions against each of thése propositions. (See, also, Investment Co. v. Walsh, 70 Kan. 899, 79 Pac. 688.) There was no suggestion in this case of any purpose or attempt to change the order that was actually made — the alteration was only in the language of the record, describing what had been done. No question is involved of any rights having been acquired under the original entry that would be disturbed by its change. The personal knowledge of the judge as to what had taken place in his presence was equivalent to evidence on the subject, and a decision of fact made upon that basis cannot be reviewed here. The circumstance that his attorney indorsed an approval upon a form for the original journal entry is mentioned as estopping the plaintiff from denying its correctness. It was the duty as well as the privilege of the judge, however, to see that the record was correctly kept, and no act of the parties could prevent the exercise of that function. SYLLABUS BY THE COURT. Jurisdiction — District Court — Correction of the Record. A district court has inherent power to correct the record of its proceedings so that it shall speak the truth and show what actually took place. This power is not lost by lapse of time, and may in the discretion of the court be exercised upon its own motion and without notice to the parties affected. That no notice was given to the defendant of the change in the record was presumably due to the fact that the change was ordered by the court of its own motion. Even in such a case, irrespective of any question of jurisdiction, the better practice would seem to be to give the parties affected notice of a proposed amendment and an opportunity to be heard upon the matter. Whether the defendant could otherwise complain of the want of notice in the present case need not be determined; he afterward, as already stated, filed a motion presenting directly the question as to what form of entry the facts required, and upon this motion a hearing was had, participated in by counsel for both parties. The court decided against the contention of the defendant. He has. therefore had every advantage that would have been secured to him by a notice of the proposition to correct the record. Accepting the corrected record as evidence of what actually took place, it is manifest that no error is shown. The judgment against the plaintiff was justified only by his consent, and his consent was expressly conditioned upon its being immediately set aside. Under these circumstances the court could not permit the-judgment to stand. Fairness to the plaintiff required that it should be vacated, and as the order of vacation was made at the same term there can be no doubt of the jurisdiction of the court to make it. The order of the district court setting aside the judgment is affirmed. All the Justices concurring.