United Zinc & Chemical Co. v. Morrison

[803] The opinion of the court was delivered by' Porter, J.: The first claim of error we shall notice is that the court erred in the admission of evidence in support of the motion to correct the journal entry. As to this contention we need only refer to the language of the court in Martindale v. Battey, 73 Kan. 92, 84 Pac. 527, and Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, 85 Pac. 594, to the effect that the record of a judgment can always 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. The evidence objected to here consisted of the certified copies of the journal entry of the trial, of the abstract of the judgment docket and of the judge’s trial docket. These were all competent for the purpose of establishing what in fact occurred at the trial, and furnished what may be said to be quite satisfactory evidence. (Pennock v. Monroe, 5 Kan. 578, 583.) The next contention, which raises the principal question in the case, is that the court erred in overruling the demurrer to the motion. The contention is stated in the briefs, in substance, as follows: The district court had no jurisdiction to correct the proceedings or records of the Allen county district court, for the reason that the only proceedings transferred by the change of venue were the application for an injunction and the motion to dissolve the restraining order. Defendants are contented with merely stating the proposition. No argument is made or authorities cited in support of it. And none are cited in the brief of the plaintiff against it. The objection is technical. The application for a change of venue asked that the place of trial of the action and all matters connected therewith be changed; and the order is broad enough in its terms to transfer the whole cause. The general rule is stated in Hazen [804] v. Webb, 65 Kan. 38, 68 Pac. 1096, 93 Am. St. Rep. 276, as follows: “A court to which a cause is properly removed by change of venue acquires jurisdiction of the cause and subject-matter coextensive with that of the court from which the venue was removed, and may inquire into anything connected with the subject-matter of the action and render any judgment which might have been rendered by the court in which the case originated.” (Syllabus.) This was approved in Young v. McWilliams, 75 Kan. 243, 89 Pac. 12. The motion was not that a judgment be rendered. It was for the correction of the record so that it would speak the truth and show a judgment actually rendered on the day that the verdict was entered. The district judge of Allen county was disqualified from acting. It must be conceded that if he had not been disqualified and no change of venue had been taken the district court of Allen county possessed authority to order the record corrected to show that a judgment was .duly entered. (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, 85 Pac. 594.) When the venue of the case was transferred to Bourbon county the court there was .given all the authority and powers in respect of this case that were possessed originally by the district court .of Allen county, and the latter court had thereafter no jurisdiction of the cause or of the parties for any purpose until the action was finally disposed of by the court to which the venue was changed. A motion of this kind to correct the record could not have been entertained by the Allen county district court while the action was pending in Bourbon county, even though a judge otherwise qualified to sit had taken his seat in the Allen county district court. The case and the parties were then under the jurisdiction of the court to which the venue had been changed. (Hazen v. Webb, [805] 65 Kan. 38, 68 Pac. 1096, 93 Am. St. Rep. 276; Young v. McWilliams, 75 Kan. 243, 89 Pac. 12.) There must be some court with authority over the record in a cause and with power to make it speak the truth or absurd consequences and results would follow. We are of the opinion that the court which possessed this power was the court which by the change of venue acquired jurisdiction of the entire proceedings, including the record of what had, up to that time, taken place in the court from which the venue was taken. If the venue had been changed before the trial the district court of Bourbon county could have entertained a motion to quash the-summons or to permit the return thereon to be amended to conform to the truth. And we think it had power to make any order necessary to be made in the progress of the cause after the venue was changed. The other theory would leave part of the cause in the court where it was originally brought and part in the court to which it was transferred. A considerable portion of the brief of plaintiffs in error is taken up with an argument on the merits of the original action, in which the judgment was rendered. It is insisted that plaintiff had waived all. damages sustained in the attachment proceedings and was not entitled to recover a judgment in this action. With the merits of the action in which the judgment was rendered we have no concern. Upon the dismissal of the former proceedings in error the judgment became final. The merits of this controversy are with the plaintiff. The defense is extremely technical. After a regular trial and verdict of a jury a judgment was in fact pronounced against the defendants. By a mere technical omission it was not properly recorded in the journal entry of the trial, although the defendants considered it so far a valid judgment that they attempted to reverse it by proceedings in error. “Mere irregularities or errors in judicial proceedings afford no ground for [806] an injunction to restrain the collection of a judgment.” (Burke v. Wheat, 22 Kan. 722. See, also, Muse v. Wafer, 29 Kan. 279.) The clerical omission was one which courts regard as of little consequence and easily remedied? It affected none of the substantial rights of the defendants, and furnished no ground for enjoining the executions. Suppose the motion to correct and amend the record had been filed in the cause before the change of venue: it could hardly be denied that under such circumstances the district court of Bourbon county would have been the only court to'pass upon the motion. The mere fact that it was filed after the venue was changed is unimportant. The judgment is affirmed.