State ex rel. Taylor v. Town Board of Supervisors

34 N.W. 123, 69 Wis. 264, 1887 Wisc. LEXIS 183

• Court: Wisconsin Supreme Court
• Decided: September 20, 1887
• Status: Published

Opinion

Cassoday, J.

It appears from the affidavit upon which the order to show cause why the recitals in the order, made JuU 23, 1886, should not be corrected so as to conform to the facts, that such recitals were in the order by a mere inadvertence or mistake; and were contrary to the facts upon which the order was based. This is not disputed. The only answer made to the order to show cause was that an appeal had previously been taken and perfected from the order of July 23, 1886. The papers in the case, however, were still of record in the trial court. The mere fact that an appeal had been taken did not deprive the court of jurisdiction to correct a clerical mistake in the recitals or wording of that order, so as to conform to the facts and the order actually pronounced by the court. It is settled that the trial court has power to make such correction at a subsequent term; and even after the expiration of a year. Williams v. Hayes, 68 Wis. 248. This being the so, the court properly made the correction. The two orders, bearing date September 7, 1886, are both, therefore, affirmed.

As the return to the alterative writ tendered a traversable issue, it was, as appeared upon the face of the order bearing date July 23, 1886, an error to grant a peremptory writ of mandamus on sustaining the demurrer thereto ore tenus. That order was procured in that form by the relator without any fault of the defendants. Technically, the defendants had the right to avail themselves of the error on appeal, at the time of taking the appeal therefrom. The order bearing date July 23, 1886, is therefore reversed.

By the Court.— Ordered accordingly.