Swain v. Naglee

Headnote

Where on appeal from an order granting a new trial, the Supreme Court affirmed the “judgment” below, and the remittitur was issued, and then, at a subsequent term, respondent moved the Court to amend its judgment by making it read, “ the order of the District Court granting a new trial is affirmed,” instead of “the judgment is affirmed: ” Held, that the motion will be granted, on the principle that Courts have the power to amend clerical errors and enter a judgment nunc pro tunc, when the record itself discloses the error, even though the term has elapsed.

Costs of the motion not allowed.

Motion in the Supreme Court to amend its judgment. The case was decided at the January term, 1861, and is reported in 17 Cal. 417 . The remittitur having been issued and the cause called for trial in the Court below, it was discovered that the judgment of the Supreme Court, as entered, affirmed the judgment below, instead of the order granting the new trial; whereupon the Court below stopped proceedings. Respondent subsequently—at the July term, 1861—moved the Supreme Court to amend its judgment by making it read,“ the order of the District Court, granting a new trial, is affirmed,” instead of“ the judgment is affirmed.”