of the frauds. 46 A judgment for damages in excess of the amount prayed for is erroneous.47 § 1365. Joint and several judgment.-Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.48 In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper. 49 In an action against two defendants upon a joint contract, plaintiff may have a several judgment against one defendant who has been served, even if the other defendant has not been served; nor is it vitiated as to the defendant served by the fact that it is in form entered up against both.50 Where an order of nonsuit is entered as to certain defendants, leaving others still before the court, the final judgment may include a nonsuit as to such defendants.51 Where two persons are sued for goods sold and delivered. judgment may be rendered against one of them and in favor of the other.52 In an action against defendants jointly and not severally liable, where a portion only of the parties are served with process, the clerk cannot, on the application of plaintiff, enter judgment upon default against parties served only. A judgment so entered is void.53 Where the liability is joint or several, the clerk may enter default and judgment against those served, whether all are served or not.54 The entry of judgment by the clerk is of course confined to actions arising upon contract for the recovery of money or damages only,55 and service of sum 46 New York etc. R. R. Co. v. Schuyler, 34 N. Y. 30. 47 Burke v. Koch, 75 Cal. 356, 17 Pac. 228. 48 Cal. Code Civ. Proc., § 578. 49 Cal. Code Civ. Proc., § 579. See Kelley v. Plover, 103 Cal. 35, 36 Pac. 1020; Fisk v. Henarie, 14 Or. 29, 13 Pac. 193, 15 Or. 90, 13 Pac. 760. 50 Kelly v. Bandini, 50 Cal. 530. See, also, Cal. Code Civ. Proc., § 414; Shain v. Forbes, 82 Cal. 577, 23 Pac. 198; Ah Lep v. Gong Choy, 13 Or. 205, 9 Pac. 483; Hamm v. Basche, 22 Or. 518, 30 Pac. 501; Conklin v. Fox, 3 Mont. 208. 51 Hanna v. De Garmo, 140 Cal. 172, 73 Pac. 830. 52 Cal. Code Civ. Proc., § 578; Dobbs v. Purington, 136 Cal. 70, 68 Pac. 323. 53 Kelly v. Van Austin, 17 Cal. 564; Curry v. Roundtree, 51 Cal. 184. See, also, Brady v. Reynolds, 13 Cal. 31; People v. Frisbie, 18 Cal. 402. 54 See Cal. Code Civ. Proc., §§ 414, 585, subd. 1; Bell v. Adams, 150 Cal. 772, 90 Pac. 118; Duncan v. Capehart, 40 Colo. 446, 90 Pac. 1033. 55 Cal. Code Civ. Proc., § 585. mons is not had by publication.56 When a judgment has been recovered against one or more joint debtors, the others, who were not originally served and did not appear, may be summoned to show cause why they should not be bound by the judgment.57 Where there is an appearance by both defendants, judgment should be against both.58 The statute authorizing the entry of judgment against the joint property of the defendants, where two or more persons, associated in any business, transact such business under a common name, by which they are sued, and one or more, but not all the associates, were served with process, has been held unconstitutional in California.59 When, in an action at law, a joint liability is charged, judgment cannot be entered separately against one of the parties.60 § 1366. Entering judgment.-The clerk shall keep with the records of the court a book to be called the "judgment-book," in which judgments must be entered.61 Where judgments are required to be entered by the clerk in a record of the court to be called the “judgment-book," the entry of a judgment in a book designated as "journal of proceedings," though irregular, does not impair or invalidate the judgment, especially as between the parties to the action.62 It is not necessary for the clerk in entering up a judgment to insert therein recitals of his exposition of the preceding facts.63 The recitals in a judgment are prima facie evidence only of the facts.64 A recital of service of summons is conclusive against a collateral attack.65 A judgment prematurely entered by the court of its own motion, after issue joined, and without any hearing, trial, or opportunity to be heard on the issues, is irregular, and will be reversed. It is not error for the court to sign a judgment on the same day it renders its opinion without giving notice to plaintiff. It is not necessary to give a party notice of the time and place of the signing of a judgment, or that 67 56 Cal. Code Civ. Proc., § 585, subd. 3. 57 Cal. Code Civ. Proc., §§ 414, 989. See, also, Sneath v. Griffin, 48 Cal. 438; Tay v. Hawley, 39 Cal 93. 58 Flake v. Carson, 33 Ill. 518. 59 Tay v. Hawley, 39 Cal. 93. 60 Rupe v. Lumber Assoc., 3 N. Mex. 261 (393), 5 Pac. 730. 61 Cal. Code Civ. Proc., § 668. 62 Work v. Northern Pacific R. R. Co., 11 Mont. 513, 29 Pac. 280; Wolf v. Great Falls etc. Townsite Co., 15 Mont. 49, 38 Pac. 115. 63 Leese v. Clark, 28 Cal. 33; Green v. Swift, 50 Cal. 455. 64 Id.; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742. 65 Sharp v. Lumley, 34 Cal. 611. 66 Hennessey v. Tacoma Smelting etc. Co., 33 Wash. 423, 74 Pac. 584. 67 White Crest Canning Co. V. Sims, 30 Wash. 374, 70 Pac. 1003. E it be served on him after filing.68 Rendering a judgment after the ninety days' time allowed a judge in which to do so does not make it a void judgment.69 Where the supreme court reverses the judgment of a district court, and directs the entry of final judgment, such judgment can be entered by the clerk of the district court in vacation.70 So an action tried by the court without a jury may be entered in vacation. The judgment should date. from the time of its rendition.72 A judgment is not a nullity because entered before exceptions to the findings are overruled and additional findings filed.73 When a demurrer to the complaint is sustained, and the plaintiff's application to amend his complaint is denied, it is the duty of the clerk, without any further direction, to enter the appropriate judgment.74 § 1367. Judgment nunc pro tunc.-A judgment may be amended nunc pro tunc, either before or after the term has expired.75 Where after the death of the appellants the appellate court, not being aware of the death, renders a judgment of affirmance, upon a subsequent suggestion of the fact the judgment will be vacated, and a judgment of affirmance rendered, as of a day previous to the death, nunc pro tunc.76 If a party die after verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon.77 Clerical errors and misprisions may be corrected nunc pro tunc.78 The province of a nunc pro tunc judgment is to supply matters of evidence and to rectify clerical misprisions; and a judgment under section 1602 of the California Code of Civil Procedure, dismissing without prejudice a petition under section 1598, in the matter of an estate, for specific performance of a contract, which, as intended, makes no award of costs, the same being under the discretion of the court, it may not be amended by a nunc pro tunc judgment to 68 Fisher v. Puget Sound Brick etc. Co., 34 Wash. 578, 76 Pac. 107. 69 Demaris v. Barker, 33 Wash. 200, 74 Pac. 362. 70 McMillan v. Richards, 12 Cal. 467. 71 People v. Jones, 20 Cal. 50; Cal. Code Civ. Proc., § 78. As to acts necessary, see Casement v. Ringgold, 28 Cal. 335. 72 Austin v. Austin, 42 Colo. 130, 94 Pac. 309. 73 Haley v. Amestoy, 44 Cal. 135. 74 Gallardo v. Reed, 49 Cal. 346. 77 Cal. Code Civ. Proc., § 669. T award costs.79 The judgment against an administrator, though in the form of a common money judgment by default, is valid, its only effect being to establish the validity of the claim.80 A court may at any time render or amend a judgment nunc.pro tunc, when the record discloses that the entry on the minutes does not correctly give what was the judgment of the court,81 and the court. may refuse to order a judgment entered as of the date it was rendered, though the only reason why it is not so entered is because of the clerk being behind with such work; such is not changing the record so as to make it speak the truth.82 But an alteration of a judgment by the court without notice, so as to include a party not served with process, if not void, is voidable at the election of the party.83 The court may amend the judgment by inserting a clause showing who are personally liable for the debt.84 It has the same force and effect as if made when judgment was rendered, except as to third persons having intervening rights; and the possessor of an inchoate right of dower at the time the judgment is rendered is not such an intervener.85 The rule that a court has no power over its own judgments upon the expiration of the term has no application, except to final judgments, or while the proceedings are in fieri.86 But where a judg ment is rendered, and an appeal taken thereto, the court below loses control over the judgment, and an order amending the judgment is erroneous. 87 § 1368. The same-Continued. After the rendition of a judgment it is the ministerial duty of the clerk to enter it;ss and he cannot, by neglecting to perform that duty, destroy or impair the effect of the judgment. 89 The judgment need not be signed. by the judge or clerk. The presumption is that the judgment as entered by the clerk was authorized.90 Entry of judgment may 79 In re Potter Estate, 141 Cal. 424, 75 Pac. 850. 80 Chase v. Swain, 9 Cal. 130. 81 Morrison v. Dapman, 3 Cal. 255. 82 Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950. 83 Chester v. Miller, 13 Cal. 561; Womack v. Sanford, 37 Ala. 445. 84 Leviston v. Swan, 33 Cal. 480. 85 Davidson v. Richardson, 50 Or. 323, 126 Am. St. Rep. 733, 89 Pac. 742, 91 Pac. 1080, 17 L. R. A. (N. S.), 319. 86 Hastings v. Cunningham, 35 Cal. 549. 87 Bryan v. Berry, 8 Cal. 135. 88 Estate of Cook, 77 Cal. 220, 11 Am. St. Rep. 267, 17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567, 83 Cal. 415, 23 Pac. 392. 89 In re Newman, 75 Cal. 213, 7 Am. St. Rep. 146, 16 Pac. 887; Baker v. Brickell, 102 Cal. 620, 36 Pac. 950. 90 California etc. R. R. Co. v. Southern Pacific R. R. Co., 67 Cal 94 be performed at any time, even after the expiration of office of the judge rendering the decision.91 A judgment of divorce rendered in favor of a party during her lifetime may be entered after her death. 92 Although a judgment may not be entered within the time provided by law, it is not thereby rendered void. 93 Failure to enter judgment until several days after a motion for a new trial is overruled constitutes no ground for error.9 A court has no right to require as a condition precedent to the entry of final judgment that a part of the judgment be first paid.95 Where the trial court has rendered a judgment, but the same has not been entered, whether in consequence of the neglect of the court or neglect or misprision of the clerk, an order may properly be made that the judgment rendered be entered nunc pro tunc, without regard to the lapse of time, where third persons are not injured thereby.96 Under section 603 of the Idaho Civil Code, providing that, when trial is by the court, judgment must be entered at the close of the trial, the action of the probate court, in such case, in entering a formal judgment for plaintiff nunc pro tunc after an appeal had been taken to the district court, is void.97 Facts found and required to be stated in the judgment should be stated therein specifically, and not by reference to matter in a pleading.98 The clerk must include in the judgment interest on the amount of the verdict from the time it was rendered.99 In an action in assumpsit, a judgment to enforce a mechanic's lien cannot be entered.100 If judgment is entered for the amount prayed for, there is no error, although the verdict specified a greater sum.101 A clerical error in the entry of a judgment, where 59, 7 Pac. 123; Crim v. Kessing, 89 Cal. 478, 23 Am. St. Rep. 491, 26 Pac. 1074. 91 Id. See Franklin v. Merida, 50 Cal. 289. 92 Estate of Cook, 77 Cal. 220, 11 Am. St. Rep. 267, 17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567, 83 Cal. 415, 23 Pac. 392. 93 Brown v. Porter, 7 Wash. 327, 34 Pac. 1105; First Nat. Bank v. Wolff, 79 Cal. 69, 21 Pac. 551; Edwards v. Helings, 103 Cal. 204, 37 Pac. 218. See Bundy v. Maginess, 76 Cal. 522, 18 Pac. 668. 94 Voorhies v. Hennessy, 7 Wash. 243, 34 Pac. 931. P. P. F. Vol. I-56 95 People v. Graham, 16 Colo. 347, 26 Pac. 936. 96 Marshall v. Taylor, 97 Cal. 422, 32 Pac. 515. 97 Grey v. Cederholm, 2 Idaho, 34, 3 Pac. 12. 98 Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741. 99 Golden Gate Mill ete. Co. v. Joshua Hendy Machine Works, 82 Cal. 184, 23 Pac. 45. Compare Alpers v. Schammel, 75 Cal. 590, 17 Pac. 708. 100 Rupe v. New Mexico Lumber Assoc., 3 N. Mex. 261 (393), 5 Pac. 730. 101 Hogan v. Shuart, 11 Mont. 498, 28 Pac. 969. |