Benway v. Benway

Plaintiff, Virgia Benway, brought this action in Merced County, setting up in her complaint that she had, on April 8, 1942, obtained a judgment against defendant in the State of Washington, in the sum of $3,991.66, no part of which had been paid. Defendant fifed an answer denying the allegations of the complaint and setting up as a separate defense that the Washington court did not have jurisdiction over the person of defendant or any property belonging to him, and that the judgment entered by said court was without jurisdiction.

The cause coming on for trial, plaintiff’s counsel introduced in evidence a copy of the judgment roll in the Washington action. That record shows that on October 24, 1927, Roy W. Benway filed in the Superior Court of Spokane County, Washington, a complaint in an action for divorce against Yirgia Benway, it being alleged therein that there was no community property belonging to the parties by reason of the fact that prior to the commencement of the action plaintiff had turned over all property to defendant. It was further alleged that there were five minor children of the marriage, the youngest, a girl, being three years of age. Defendant filed an answer and cross-complaint, in which plaintiff’s allegations of cruelty were denied, and cruelty on the part of cross-defendant toward cross-plaintiff was alleged. It was further alleged that the parties had entered into an oral agreement which would be reduced to writing later, which provided for division of property and for alimony and the custody of the children of the marriage. It was prayed that a divorce be granted to cross-complainant, that the agreement be approved by the court and that cross-defendant be compelled to pay the sums therein agreed upon as alimony and the property be awarded as therein provided. Cross-defendant in a reply ad

At the conclusion of the trial the court made and filed its findings of fact and conclusions of law which recited that plaintiff (cross-defendant) had been guilty of cruel treatment toward defendant (cross-complainant) and that defendant was entitled to a divorce from plaintiff; also ‘ ‘ That there is no community property belonging to plaintiff and defendant; that all property rights were settled between them prior to the commencement of this action; that the custody of the children belonging to the aforesaid parties has likewise been adjusted between the parties themselves; that the agreement settling the property rights and custody of the children of the parties is approved and made a part hereof.” These findings were “approved as to form” by plaintiff’s attorneys. On the same day, February 17, 1928, the court filed its “Interlocutory Order,” which decreed that defendant was entitled to an interlocutory decree of divorce but made no mention of the custody of children or the payment of alimony. Upon the expiration of six months a final decree was made and entered granting an absolute divorce to Mrs. Benway, but making no mention of custody, alimony or support money.

After introducing the foregoing record in the ease before us plaintiff rested.

Defendant then took the stand and testified that he had not been in the State of Washington since 1928, that no “due process” had been served upon him in that proceeding, that he had no attorney in the divorce proceeding who had authority to represent him after the final decree was entered in Washington, that three of the children had been with him and only one with the mother. No other evidence was offered. The trial court filed a memorandum opinion in which it stated that the nunc pro tunc order and the judgment which followed it were null and void because Benway was not served personally in the State of Washington, that the entry of the “per

Appellant states that the question involved is whether the order of the Washington court correcting the interlocutory and final decrees of divorce nunc pro tunc was valid. Respondent argues that it was invalid because of lack of personal service of notice upon him to appear and defend against the petition for correction of the judgment nunc pro tunc. He also argues that the original judgment was, by the nunc pro tunc correction, changed from a judgment in rem to a judgment in personam, and that this could not be done without serving him personally in the State of Washington; and that the judgment for the unpaid alimony was a new and personal judgment which was not based on personal service.

We are of the opinion that the order of the Washington court, made in 1942, correcting the decrees entered in 1928 nunc pro tunc as of their original dates was valid. The great weight of authority is to the effect that a court may, at any time, and with or without notice, or on its own motion, correct a judgment by a nunc pro tunc order so as to make the judgment as entered conform to the judicial decision actually made. (See Takekawa v. Hole, 170 Cal. 323 [ 149 P. 593 ]; Dutton Dredge Co. v. Goss, 77 Cal.App. 727 , 732 [ 247 P. 594 ]; Goatman v. Fuller, 191 Cal. 245 , 248 [ 216 P. 35 ]; Kaufman v. Shain, 111 Cal. 16 , 23 [ 43 P. 393 , 52 Am.St.Rep. 139 ]; Carter v. J. W. Silver Trucking Co., 4 Cal.2d 198 , 204-205 [ 47 P.2d 733 ]; Carpenter v. Pacific Mutual Life Insurance Co., 14 Cal.2d 704 [ 96 P.2d 796 ]; Scamman v. Bonslett, 118 Cal. 93 , 97 [ 50 P. 272 , 62 Am.St.Rep. 226 ]; E. Clemens Horst Co. v. Federal etc. Co., 22 Cal.App.2d 548 [ 71 P.2d 599 ]; Crim v. Kessing, 89 Cal. 478 , 486 [ 26 P. 1074 , 23 Am.

As above stated, the Washington court recited in its findings of fact and conclusions of law that the parties had entered into an agreement settling their property rights and custody of their children, and that such agreement was approved and made a part thereof. This constituted the decision of the court. Section 367, Remington’s Revised Statutes of Washington, which is comparable to section 632 of the California Code of Civil Procedure, provides: “Upon the trial of an issue of fact by the court, its decisions shall be given in writing and filed with the clerk. In giving the decision the facts found and the conclusions of law shall be separately stated. Judgment upon the decision shall be entered accordingly.”

Findings and conclusions made and filed pursuant to such a statute constitute the decision of the court, and the entry of judgment thereon is a ministerial act to which the signature of the judge gives no additional validity. (See Crim v. Kessing, supra, at p. 488; Takekawa v. Hole, supra, at p. 324; In re Cook, 77 Cal. 220 , 227 [ 17 P. 923 , 19 P. 431 , 11 Am.St.Rep. 267 , 1 L.R.A. 567 ]; 14 Cal.Jur. § 71, p. 994.)

While a court may not correct a judicial error by an order so entered, errors due to the failure of a record to speak the truth or to conform to the decision rendered, and clerical misprisions generally, of which the record affords the evidence, may be corrected at any time by the court upon its own motion or upon motion of an interested party, with or without notice. (14 Cal.Jur. 1007.)

Also a clerical error is not necessarily one made by a clerk, but such error may be that of the court or judge. In Estate of Goldberg, 10 Cal.2d 709 [ 76 P.2d 508 ], the court had for consideration the validity of an order correcting a decree of distribution nunc pro tunc as of the date of the original decree entered thirty-five years previously. It first stated the general rule that when on the face of a record it appears that a clerical error has been committed and carried into the judg

Also in Kohlstedt v. Hauseur, 24 Cal.App.2d 60 [ 74 P.2d 314 ], where the power of the court to amend a judgment nunc pro tunc on an ex parte application was in question, the court said that the superior court has inherent power to correct its records so as to make them speak the truth, regardless of the lapse of time, even though the misprision was that of the court; and that such correction may be made ex parte and of the court’s own motion. It also said that it is for the judge who made the original decision to decide whether the judgment as written expresses his decision, and that in so acting he is exercising one of the functions of his judicial office, citing Kaufman v. Shain, supra, and Kowalsky v. Nicholson, 23 Cal.App. 160 [ 137 P. 607 ], It also quoted from Livesay v. Deibert, 3 Cal.App.2d 140 , 147 [ 39 P.2d 466 ], where the court said that it was for the trial judge to determine whether the order was all that he intended it to be; that if the mistake was clerical it could be corrected; that it must be presumed that he found it to be his own clerical error; that the facts were within his knowledge and that he had a right to rely upon his own memory; and that the court retained jurisdiction to amend the original order to correct clerical errors therein.

In Haynes v. Los Angeles R. R. Corp., 80 Cal.App. 776 [ 252 P. 1072 ], the court said, page 781, that the court having made the nunc pro tunc order, every intendment is in favor of its regularity and validity. And in Crim v. Kessing, supra, it was said, page 486, that, when made, a record so corrected, and the.order making the correction, are conclusive upon any

There is no merit in respondent’s argument that the nunc pro tunc order made by the Washington court had the effect of changing a judgment in rem to one in personam, without personal service upon respondent in the State of Washington. Respondent himself instituted the divorce proceeding, appeared in answer to appellant’s cross-complaint and made no denial of the allegation therein that the parties had entered into an agreement as to property, alimony and the custody of the children. He was well aware of the findings of the court made and filed, same having been approved as to form by his counsel. His awareness of his obligation to pay to Mrs. Benway the $25 provided by the agreement is evidenced by his deposit of $250 with the clerk of the court in part payment of this obligation. The decision of the trial court was made when the findings were filed, and, as we have held, the nunc pro tunc order did not create any new obligation on his part but merely corrected the clerical error of the court in failing to carry same into the decrees. De la Montanya v. De la Montanya, 112 Cal. 101 [ 44 P. 345 , 53 Am.St.Rep. 165 , 32 L.R.A. 82 ], and similar eases cited by respondent have no application.

Nor did the hearing at which the Washington court determined the amount due appellant under the decision and agreement constitute a new or independent proceeding. It was merely auxiliary to the divorce action, and a proper exercise of the continuing jurisdiction of the divorce court. It is not contended by respondent that he ever paid more on account of his obligation than the $250 paid into the registry of the court, and the determination of the amount remaining unpaid was a mere matter of computation.

Even if service of notice of these proceedings was necessary, service upon respondent’s attorney of record was sufficient. (Reynolds v. Reynolds, 21 Cal.2d 580 , 583-585 [ 134 P.2d 251 ]; Shibley v. Superior Court, 202 Cal. 738 [ 262 P. 332 ]; Russ v. Russ, 68 Cal.App.2d 400 , 406 [ 156 P.2d 767 ]; Olcott v. Superior Court, 68 Cal.App.2d 603 , 606 [ 157 P.2d 36 ]; State v. Superior Court, 164 Wash. 618 [ 3 P.2d 1098 , 1099, 78 A.L.R. 366 ]; In re Force, 113 Wash. 151 [ 193 P. 698 ].)

Thompson, J., and Peek, J., concurred.