it is shown by the record, may be corrected on motion at any time. 102 When the record of a judgment itself affords satisfactory evidence not only of a mistake therein, but also of what the order. of judgment really was, it may be corrected without any extraneous proof.103 An error occasioned by the clerk wrongfully entering a judgment for a sum not found by the verdict nor warranted by the pleadings may be cured by remittitur.104 And this may be done after an appeal and affirmance of the judgment.105 A judg ment entered at a former term may be amended by the trial court by inserting the plaintiff's true name, and may be entered nung pro tunc as amended.106 It is held error to enter judgment in a case when, after verdict, a stay of all proceedings has been or dered, if the entry was within the time in which the order is operative.107 Courts have absolute power over their judgments during the term at which they were rendered, unless that jurisdiction has been lost by appellate or other proceedings. 108 But pending an appeal from a judgment, the court in which the judgment was entered has no power to amend or correct it.109 A judgment entered as rendered, but rendered in excess of a stipulation therefor, is erroneous, and the error is one of law committed at the trial, the remedy for which is either by motion for a new trial, or by appeal, and is not a clerical misprision, which may be corrected by the record, and the court has no power to correct it after the expiration of six months from the date of its entry.110

102 San Joaquin etc. Water Co. v. West, 99 Cal. 345, 33 Pac. 928.

103 People v. Ward, 141 Cal. 628, 75 Pac. 306.

104 Redinger v. Jones, 68 Kan. 627, 75 Pac. 997.

105 Dreyfuss v. Tompkins, 67 Cal. 339, 7 Pac. 732. And see Kindel v. Beck etc. Lithographing Co., 19 Colo. 310, 35 Pac. 538, 24 L. R. A. 311.

106 Barber v. Briscoe, 9 Mont. 341, 23 Pac. 726.

107 Uhe v. Chicago etc. R. R. Co.. 3 S. Dak. 563, 54 N. W. 601. As to erroneous entry of judgment before time to answer expires, see Gwillim v. First Nat. Bank, 13 Colo. 278, 22 Pac. 458. As to premature entry of judgment, see Sylph Min. etc. Co. v. Williams, 4 Colo. App. 345, 36 Pac. 80. As to validity of judgment en

tered in vacation, see Sperling v. Calfee, 7 Mont. 514, 19 Pac. 204; Staab v. Atlantic R. R. Co., 3 N. Mex. 349 (606), 9 Pac. 381; Schenk v. Birdseye, 2 Idaho, 141, 6 Pac. 128. That judge may direct entry of judgment outside of his district, see Gould v. Duluth etc. Elevator Co., 3 N. Dak. 96, 54 N. W. 316.

108 Pennington V. McNally, 11 Colo. 557, 19 Pac. 503; De Guile v. Alexander, 4 Colo. App. 516, 36 Pac. 620.

109 Shay v. Chicago Clock Co., 111 Cal. 549, 44 Pac. 237.

110 Dyerville Mfg. Co. v. Heller, 102 Cal. 615, 36 Pac. 928. See Egan v. Egan, 90 Cal. 15, 27 Pac. 22; Knowlton v. Mackenzie, 110 Cal. 183, 42 Pac. 580; Cosby v. Superior Court, 110 Cal. 45, 42 Pac. 460.

An application for an order directing the entry of a judgment, may be made ex parte. Notice is not necessary, unless a stay exists, or the court or judge, for some special reason, directs that such notice be given.111

§ 1369. Judgment-roll.-Whether a judgment is void on its face is to be determined by an inspection of the judgment-roll.112 An answer, notwithstanding an order to strike it out, is still entitled to its place in the judgment-roll.113 An affidavit upon which to base a motion to strike out an answer, and notice of such motion and affidavit of its service, constitute no part of the judgment-roll.114 A bill of exceptions made during the progress of a trial should be annexed to the judgment-roll.115 Until the amendment to the two hundred and third section of the Practice Act, the judgment-roll was not required to contain the order sustaining or overruling a demurrer.116 An order submitting a demurrer, where it is taken under advisement, forms no part of the judgment-roll. 117

§ 1370. Judgment-roll, what constitutes.-Immediately after entering the judgment, the clerk must attach together and file the following papers, which shall constitute the judgment-roll: 1. In case the complaint be not answered by any defendant, the summons, with the affidavit or proof of service; the complaint, with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment; and in case the service so made is by publication, the affidavit for publication of summons, and the order directing the publication of summons; 2. In all other cases, the pleadings, all orders striking out any pleadings in whole or in part, a copy of the verdict of the jury or finding of the court or referee, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment; if there are two or more defendants in the action, and any one of them has allowed judgment to pass against him by default, the

111 Gould v. Duluth etc. Elevator Co., 3 N. Dak. 96, 54 N. W. 316. See Estate of Cook, 77 Cal. 220, 11 Am. St. Rep. 267, 17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567.

112 Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007.

113 Abbott v. Douglass, 28 Cal. 295.

114 Dinick v. Campbell, 31 Cal. 238. See Ganceart v. Henry, 98 Cal. 281, 33 Pac. 92.

115 More v. Del Valle, 28 Cal. 170; Klauber v. San Diego Street Car Co., 98 Cal. 109, 32 Pac. 876.

116 Abadie v. Carrillo, 32 Cal. 172. 117 Anderson v. Fisk, 36 Cal. 625.

summons, with proof of its service on such defendant; and if the service on such defaulting defendant be by publication, then the affidavit for publication, and the order directing the publication of summons.118 An interlocutory judgment is properly a part of the judgment-roll. 119 Neither a bill of particulars nor instructions of the court are any part of the judgment-roll.120 So of an order appointing a guardian ad litem for minor defendants;121 of an order setting aside a default and judgment, and restoring an answer to the files;122 of notice of the overruling of a demurrer;123 or of an order allowing an amendment to a complaint.124 The affidavit of publication of summons is part of the judgment-roll.125 So is the special verdict of a jury in an equity case. 126 It is only the finding of a referee upon the whole issue that must stand as the finding of the court, and form part of the judgment-roll. 127 On settlement of the accounts of an executor or administrator, the accounts and reports accompanying them, the objections or exceptions to the accounts, the findings of the court thereon, and the judgment or order settling the accounts, constitute the judgment-roll.128 If two judgments are found in the judgment-roll, the later in point of time is the only one considered.129 The register of actions is not a part of the judgment-roll. 130 A recital in a judgment that defendant has been regularly served with process is not rebutted where the judgment-roll merely contains the original summons with the return of the sheriff that he was unable to find defendant, and the affidavit of publication which does not show that an alias was not issued prior to the publication.131 If the clerk neglects to make up the judgment-roll,

118 Cai. Code Civ. Proc., § 670, as amended 1907. See People v. Thomas, 101 Cal. 571, 36 Pac. 9; O'Neill v. Potvin, 13 Idaho, 721, 93 Pac. 20.

119 Packard v. Bird, 40 Cal. 382. 120 Paris v. Raynor, 76 Cal. 647, 18 Pac. 788.

121 Brady v. Page, 66 Cal. 232, 5 Pac. 103.

122 Von Schmidt v. Von Schmidt, 104 Cal. 547, 38 Pac. 361.

123 Jacks v. Baldez, 97 Cal. 91, 31 Pac. 899.

124 Carter v. Paige, 80 Cal. 390, 22

Pac. 188.

125 People v. Thomas, 101 Cal. 571, 36 Pac. 9.

126 Goldman v. Rogers, 85 Cal. 574, 24 Pac. 782.

127 Faulkner v. Hendy, 103 Cal. 15, 36 Pac. 1021. See Lee Sack Sam v. Gray, 104 Cal. 243, 38 Pac. 85.

128 Miller v. Lux, 100 Cal. 609, 35 Pac. 345, 639. As to constituent. of judgment-roll under Montana statute, see Blessing v. Sias, 7 Mont. 103, 14 Pac. 663.

129 Colton etc. Water Co. V. Swartz, 99 Cal. 278, 33 Pac. 878.

130 Mont. Rev. Codes, § 6806; Haupt v. Simington, 27 Mont. 480, 94 Am. St. Rep. 839, 71 Pac. 672.

131 People v. Davis, 143 Cal. 673, 77 Pac. 651.

it does not vitiate the judgment or the proceedings under it.132 It must be presumed in the absence of evidence to the contrary, that the clerk, in making up the judgment-roll, regularly performed his official duty, and made it up within the proper time, including all papers then on file which should have gone into it.133

§ 1371. Docketing judgment.-Immediately after filing a judgment-roll, the clerk shall make the proper entries of the judgment under appropriate heads in the docket kept by him.134 If the judgment be for the recovery of money or damages, the . amount shall be stated in the docket under the head of judgment; if the judgment be for any other relief, a memorandum of the general character of the relief granted shall be stated. The names of the defendants shall be entered in the docket in alphabetical order. The docket is a book which the clerk keeps in his office, with each page divided into nine columns, and headed as follows: Date of entry in docket; judgment debtors; judgment creditors; judgment; time of entry; where entered in judgment-book; appeals, when taken; judgment of appellate court; satisfaction of judgment, when entered.135 The docketing of a judgment imparts constructive notice of the lien of the judgment on the real estate of the judgment debtor to strangers to the judgment.136 It shall be open at all times during office hours for the inspection of the public without charge.137 The judgment debtor cannot set up errors in docketing the judgment as destroying its lien, when the property has been sold on execution under the judgment; if the property sold is his, the levy operated as a lien; if not, he has no right to complain. 138

When the clerk enters the judgments and orders of the court, the record imports absolute verity, and can only be changed or modified by order of the court, and such records need not be signed by the judge to give them validity.189 If there is a conflict between the terms of the decree and the recital of facts in the opinion, the decree governs.140 A judgment rendered in the 135 Cal. Code Civ. Proc., § 672. 136 Page v. Rogers, 31 Cal. 293. 137 Cal. Code Civ. Proc., § 673. 138 Low v. Adams, 6 Cal. 277. 139 Boynton v. Crockett, 12 Okla. 57, 69 Pac. 869.

132 Sharp v. Lumley, 34 Cal. 611; Lick v. Stockdale, 18 Cal. 219; Sharp v. Daughney, 33 Cal. 505.

133 Gordon v. Donahue, 79 Cal. 501, 21 Pac. 970.

134 Cal. Code Civ. Proc., § 671. As to ministerial duty of clerk as to entry of judgment, see Baker v. Brickell, 102 Cal. 621, 36 Pac. 950.

140 State v. Gray, 42 Or. 261, 70 Pac. 904, 71 Pac. 978.

superior court on certification of a justice's judgment is subject to direct attack in the superior court.141

§ 1372. Entry by clerk.-When trial by jury has been had, judgment shall be entered by the clerk in conformity to the verdict within twenty-four hours, unless the court order the cause to be reserved for argument, or further consideration, or grant a stay of proceedings. If trial is had by the court, judgment. must be entered by the clerk in conformity to the decision, immediately upon filing such decision, and the judgment has no effect until so entered.142 Where there is no question as to the proper judgment to be entered on a verdict, the judgment should be entered at once, without waiting for a motion for new trial.143 A judgment can be rendered upon a special verdict only when it is inconsistent with the general verdict.144 No judgment can be entered on a general verdict rendered by a jury in an equity case, and a judgment thus entered will be reversed for a failure of the court to find upon the issues.145 The fact that the delay to enter the judgment upon the verdict was the delay of the clerk, and not of the court, does not affect the right to have the judgment entered nunc pro tunc.146 A judgment non obstante veredicto is always upon the merits, and is never granted but in a very clear case, as where it is apparent to the court from the defendant's own plea that he can have no merits.147 Where allegations in an answer which constitute a complete defense to the plaintiff's cause of action are not denied by the reply, judgment will be rendered for the defendant, notwithstanding a verdict for the plaintiff.148 If the verdict of the jury fails to find the lien, the court cannot render a judgment essentially dif ferent from the verdict, and the judgment so far will be re143 Hutchinson v. Bours, 13 Cal.

141 Noerdlinger v. Huff, 31 Wash. 360, 72 Pac. 73.

142 Cal. Code Civ. Proc., § 664; Alaska Codes, pt. 4, ch. 29, §§ 251259; Ariz. Civ. Code, pars. 1428, 1443; Idaho Rev. Codes, § 4450; Mont. Rev. Codes, § 7048; Nev. Comp. Laws, § 3294; N. Mex. Comp. Laws, §§ 2685, 3078-3086; N. Dak. Code Civ. Proc., $$ 5479, 5499; Or. B. & C. Codes, § 151; S. Dak. Code Civ. Proc., $$ 309, 327; Utah Rev. Stats.. § 3191; Wash. Bal. Codes, § 5045; Wyo. Rev. Stats., §§ 3767-3780.

51.

144 Obersteller v. Commercial Assur. Co., 96 Cal. 645, 31 Pac. 587.

145 Learned v. Castle, 67 Cal. 41, 7 Pac. 34.

146 Marshall v. Taylor, 97 Cal. 422, 32 Pac. 515.

147 Friendly v. Lee, 20 Or. 202, 25 Pac. 396.

148 Benicia Agricul. Works V. Creighton, 21 Or. 495, 28 Pac. 775, 30 Pac. 676.