HURLEY v. CHILDERS

HURLEY v. CHILDERS
1926 OK 47
243 P. 218
116 Okla. 84
Case Number: 15216
Decided: 01/19/1926
Supreme Court of Oklahoma

HURLEY et al.
v.
CHILDERS et al.

Syllabus

¶0 1. Judgment--Journal Entry--Validity--Clerks of Courts.
It is the duty of the clerk to keep a journal, and enter all judgments of the court thereon; and, regardless of who prepares the journal entry of judgment, which is entered on the journal, it becomes the act of the clerk
2. Same--Correction of Errors
Under section 811, C.
S. 1921, a mistake or omission of the clerk in entering a judgment of the court on the journal may be corrected, during or after the term at which the judgment was rendered, by motion, upon reasonable notice to the adverse party or his attorney in the action.
3. Same--Scope of Correction Confined to Original Judgment.
In a proceeding to correct the clerk's entry of the judgment of the court, the court has no jurisdiction to render judgment against one who was not a party to the original judgment. In such proceeding, the court can only correct the clerk's entry of the judgment to show the true judgment rendered.

Commissioners' Opinion, Division No. 2.

Error from District Court, Tillman County; Frank Mathews, Judge.

Action by W. W. Childers and J. T. Mc- Williams against J. S. Harley and J. L. Elledge. Judgment for plaintiffs, and defendants bring error. Affirmed as to defendant Hurley, and reversed and remanded as to defendant Elledge.

P. Mounts and W. H. Hussey, for plaintiffs in error.
Wilson & Roe, for defendants in error.

JARMAN, C.,

¶1 This was an action by W. W. Childers and J. T. McWilliams to enjoin J. S. Hurley from placing a frame building on lot 6 of block 43 in the town of Tipton, Okla. Summons was issued and served on the defendant January 29, 1920, and on the same date, upon application of the plaintiffs, the county judge, in the absence of the district judge from the county, issued a temporary order of injunction, restraining and enjoining the defendant from placing the frame building on said lot. On February 17, 1920, upon a hearing being had in the district court, said temporary injunction was made permanent "upon condition that plaintiff pay defendant the sum of $ 400." On the same day that the injunction was made permanent, February 17, 1920, Joe Elledge appears to have been made a party defendant to the action, and a summons was issued and served on him on that date, requiring him to answer on or before March 18, 1920. Elledge entered no appearance and was not a party to the proceedings, nor to the judgment making the injunction permanent. On October 5, 1922, a motion was filed by the plaintiffs to correct the journal entry of said judgment on the ground that said journal entry did not correctly recite the judgment actually rendered by the court, which was that the temporary injunction be made permanent, "upon condition that plaintiffs pay the defendant the sum of $ 400 for lot 6 in block 43 of the town of Tipton, Okla." and asked that said journal entry be corrected to correctly set forth the judgment actually rendered. Notice of said motion was served by registered mail on the defendant Elledge January 3, 1923, and notice was also served on the defendant Hurley. On October 1, 1923, a hearing was had on said motion at which all parties appeared, and the court made and entered an order correcting said journal entry to read:

"That the temporary injunction issued herein should be and is hereby made permanent upon condition that plaintiffs pay the said defendants the sum of $ 400 upon the delivery by the defendants J. S. Hurley and J. L. Elledge, to the plaintiffs a good and sufficient deed to lot No. 6 in block 43 of the original town of Tipton, Okla."

¶2 From this order correcting said journal entry the defendants have appealed. The defendants first contend that the trial court erred in overruling their objection to the introduction of any evidence under the motion to correct the journal entry of judgment for the reason that said motion does not allege that the error complained of was caused by any mistake or omission of the clerk.

¶3 Section 811, C. S. 1921, provides that:

"Proceedings to correct mistakes or omissions of the clerk * * *--shall be by motion upon reasonable notice to the adverse party or his attorney in the action."

¶4 It is true that the motion fails to allege that the clerk made the mistake or omitted to enter on the journal the judgment rendered by the court, yet it does allege in substance that the entry on the journal does not correctly recite the judgment rendered by the court, and in this behalf the evidence is overwhelming. It is the duty of the clerk to keep a journal (section 865, C. S. 1921), and it is his duty to enter all judgments of the court on the journal (section 685, O. S. 1921), and, regardless of who prepared the journal entry of judgment which is entered on the journal, it becomes and is the act of the clerk. The motion was sufficient, and the court properly overruled the objection of the defendants to the introduction of any evidence thereunder.