I dissent. Of course, after petitioner has had the advantage of one appeal, in which all the merits of his case were fully presented, there is no justice in allowing him another appeal of the identical same kind, and I think that the law does not imperatively demand a ruling which allows him such double appeal. I think that *Page 610 the case at bar is distinguishable from Brady v. Burke, 90 Cal. 1, and Estate of Devincenzi, 131 Cal. 452. They present the naked case of a notice of appeal before any pretense of the entry of the judgment or order attempted to be appealed from. In the case at bar the judgment appealed from had been entered before the appeal was taken. The findings and decision of the court show what the judgment should be, and direct it to be so entered. The clerk entered the judgment in accordance with the decision in all respects except this one: when writing the names of the defendants against whom the judgment was ordered, he omitted, by a clerical mistake, the name of the defendant who is now here petitioner. The record, on its face, clearly shows the mistake, and it could have been amended at any time so as to express the decision and direction of the court. This the petitioner is presumed to have known, and with this knowledge he, with the other defendants, appealed from the judgment, and on the appeal presented and argued the entire merits of the case as if the clerk had already entered the judgment as he should have entered it, and as he could at any moment have been compelled to enter it. Petitioner assumed that to have been done which should have been done. The record showed that the judgment was substantially a judgment against him; for it was always, on its face, subject to the amendment which would make the judgment express the decision. The judgment, therefore, even as it stood, was a menace to petitioner, and he was a party aggrieved thereby, with the right of appeal, and having appealed once, he had no right to the same appeal the second time.
*Page 611I think that the petition for the writ should be denied.