Crichton v. Storz

147 P. 916, 20 N.M. 195

• Court: New Mexico Supreme Court
• Decided: March 25, 1915
• Docket: No. 1670
• Status: Published

Opinion

OPINION OF THE COURT.

MECHEM1, District Judge

(after stating the facts as above.) — The appellants question the validity of the judgment of November 24, 1913, in cause No. 7060, first, because there had been theretofore a final judgment rendered in said cause; and, second, because the term had elapsed at which the former judgment had been rendered, which, they contend, deprived the trial court of jurisdiction to render the later additional or amendatory judgment.

[1] The practice in amending final decrees is stated in 5 Enc. PI. & Pr. 1053, as follows:

“A final decree may be amended after enrollment and in a material point, where the amendment is not a matter as to which there could have been a doubt as to plaintiff’s right to have it made a part of the decree, if it had been asked for when the decree was rendered, and where the omission to insert it in the decree arose from inadvertence.”

The. text, is abundantly supported by cases cited. See Sprague v. Jones, 9 Paige (N. Y.) 395; Jarmon v. Wiswall. 24 N. J. Eq. 68; Oliver Finnie Grocery Co. v. Bodenheimer, 77 Miss. 415, 27 South. 613; 16 Cyc. 506. In, view of the fact that in the judgment of May 13, 1913. the. court allowed recovery for the costs of filing plaintiff’s liens, and also the attorney’s fees provided by the statute for foreclosing liens, there' can be no doubt but that, if asked for at the time, the court would have rendered judgment foreclosing the liens as a matter of course, and that the omission to do so arose from mere inadvertence.

[2] As to the point raised that the lapse of the term at which the judgment of May 13, 1913, was entered deprived the court of further control over the judgment, it must be held that this is no longer an open question, under the ruling in Weaver v. Weaver, 16 N. M. 98, 113 Pac. 599, where it was said :

“For- ordinary cases, at least, the time within which a judgment can be vacated is limited. If the court rendering a judgment has terms, its control of the judgment is usually limited to the term in which it was rendered. Bronson v. Schulten, 104 U. S. 410 [26 L. Ed. 797]; Grames v. Hawley [C. C.] 50 Fed. 319. But in this jurisdiction, in view of the provisions of section 2875, C. L. 1897, that district courts in the several counties ‘shall be at all times in session,’ for the numerous purjooses named in the statute, it can hardly be said that there are terms of court, except for purposes connected with jury trials. Territory v. Armijo, 14 N. M. 202, 210, 89 Pac. 275.”

The objection to the lien claimed by Philip Hesch, Jr., we find from the record not to be well taken.

Judgment of the lower court affirmed.

Parker, J., concurs. Roberts, C. J., dissents.