City of Burlington v. Fear

89 N.W. 1074, 116 Iowa 299

• Court: Supreme Court of Iowa
• Decided: April 11, 1902
• Status: Published

Opinion

Waterman, J. —

The facts which 'gave rise to the motion made are as follows: In September, 1898, appellant brought an action against Fear, who was city auditor, and the other two defendants named herein, who were sureties on Fear’s bond. The case was tried to a jury in September, 1899; and, on the conclusion of plaintiff’s testimony, counsel for the sureties (not representing Fear) asked a directed verdict for nominal damages against their clients. This was ordered, and a verdict for one cent damages was returned. Counsel for plaintiff then announced they would prepare a form of judgment entry. Upon this verdict the clerk on the same day, to wit, September 21, 1899, entered a judgment against the defendants Samuel B. Hunt and T. W. Burrus, administrator of the estate of E. S. Bnrrus, deceased, for one cent and costs of suit. No entry was made as to Fear. On September 30th, three days after the entry of this judgment, which was made without the knowledge of appellant’s counsel, the latter handed the clerk a form of entry, without date, which they desired to hare signed by the judge and recorded. The clerk took the paper, saying nothing of the entry which he had inade, and has since kept it on file, blit has not recorded it. Plaintiff served notice of appeal to this court from such judgment on the twenty-eighth day of March following. This was not in time. Ritchey v. Fisher, 85 Iowa, 560; section 4110, Code. Thereafter plaintiff filed the motion which is the basis of the controversy here; asking an order, in effect, substituting the judgment entry prepared by its counsel, and to have the same recorded as of September 30, 1899. Fear is not represented in this proceeding, and, so far as appears, there is no objection to plaintiff taking-judgment against him. The record does not show that any judgment was ever ordered against Fear, but the case was carried along on the docket as to him until, November 13, 1899, and was then dropped. However, the purpose of this motion is not to obtain a judgment against Fear, but to change the date of the judgment against the sureties from September 27, 1899, to the thirtieth of that month, in order to let in the appeal. We are not concerned with the power of the court to enter a judgment nunc pro tunc, nor with the question of when it should be written in the court record. Plaintiff was clearly entitled to judgment on the date of the verdict. One was entered. If he were now permitted to have its terms corrected, it would not be permissible to alter its date. . The substitution of his entry, if such an order had been made, would have been as of September 27, 1899. This being so, the object he sought could not be accomplished.

The trial taourt’s ruling was correct, and it is akkirmed.