I am unable to concur in the opinion of the court. In reviewing the lower court's action, I take it we should be guided by the rule stated in State Trust Savings Bank et al. v. Hermosa L. C. Co., 30 N.M. 566, 240 P. 469, 477, as follows: "Our review is for the correction of an erroneous result, rather than merely to approve or disapprove the grounds on which it is based."
The trial court correctly designated the complaint in this case as "an ordinary bill in equity seeking the foreclosure of a mechanic's lien, and praying for a deficiency judgment." If the trial court's interpretation of the pleading is permissible, it should be followed. Summerford v. Board of County Com'rs, 35 N.M. 374, 298 P. 410; Johnson v. City of Santa Fe, 35 N.M. 77,290 P. 793. True, it contains an allegation of indebtedness, but the existence of a present indebtedness on the part of the defendant is the very foundation of the right of foreclosure of a mechanic's lien. Young v. Vail, 29 N.M. 324, 222 P. 912, 34 A.L.R. 980. It is, in my judgment, a mistake to extend the doctrine of the case of Porter v. Alamocitos Land Livestock Co., 32 N.M. 344, 256 P. 179. If the defendants must proceed upon the theory that there is concealed in every bill for the foreclosure of a mechanic's lien another count for a judgment at law, and move that the causes be separately stated, it will result in much unnecessary delay. Of course, under proper pleadings the plaintiff would have been entitled to personal judgment and forthwith execution thereon for the $310, but not for the attorney's fee. All parties below interpreted the judgment as including the attorney's fee, which was allowed in the second paragraph above the judgment, in the following language: "The court further finds that it was necessary to employ an attorney to foreclose the said mechanic's lien and that a reasonable fee therefor allowed by the court is the sum of $50.00."
The defendant's attorney was negligent in initialing the prepared form of decree, and contributed to the deception of the court thereby, but his action did not make it a judgment by consent. San Francisco Savings Union v. Myers, 76 Cal. 624,18 P. 686; 3 Freeman on Judgments (5th Ed.) p. 2765. And in Morrison Pardue v. Roberts-Dearborne Hdw. Co., 34 N.M. 636, 287 P. 290, we recently afforded relief where counsel had inadvertently consented to the entry of an order. On the thirty-first day after the entry of the judgment and after the execution issued thereon, including the $50 attorney fee, had been levied upon the personal property of defendant, the same attorney who had initialed the form of judgment entry filed the motion for the modification of the decree. Plaintiff's offer in this court to reduce his execution lien the amount of the attorney's fee should be given no consideration in reviewing the action of the trial court.
If it was not a consent judgment, it must have been the judicial determination of the court in order to take it out of the class of clerical errors or irregularities. The question as viewed by the trial court, apparently, *Page 96 and as I view it, is: Will a judgment not pronounced, not supported by the pleadings, and inconsistent with the decree rendered, if inserted by counsel in the prepared form (and not called to the attention of the court at the time it is presented for signature), stand beyond the jurisdiction of the trial court after the expiration of the thirty-day period.
In Crichton et al. v. Storz et al., 20 N.M. 195, 147 P. 916, an amendment, made after the term, of a decree, entered through inadvertence, foreclosing a mechanic's lien, was upheld.
In Zintgraff v. Sisney et al., 31 N.M. 564, 249 P. 108, Mr. Justice Watson, in the opinion of the court, stated the general rule, as follows: "So, also, the court may modify a judgment `so as to correct what was evidently a purely clerical error.' U.S. v. Irrigation Co., 13 N.M. 386, 85 P. 393. In the last-mentioned case, subsection 85 of the Code (Code 1915, § 4167) was cited as authority for the amendment; but the court might have relied for the ruling upon the general power of courts to correct clerical errors in judgments to make them speak the truth and represent the judgment actually pronounced. 34 C.J. 229; 15 Standard Ency. of Proc. 118; 5 Ency. of Pl. and Pr. 1053; 15 R.C.L. 679."
The term "clerical errors" is not used in a narrow sense, and it includes mistakes of court and counsel apparent on the record, which cannot be attributed to the exercise of judicial discretion. Ex parte Marks, 136 F. 168, 69 C.C.A. 80, 34 C.J. 227.
1 Freeman on Judgments (5th Ed.) p. 284, says: "But, `clerical' is employed in a broad sense as contradistinguished from `judicial' error and covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. In other words, the distinction does not depend so much upon the person making the error as upon whether it was the deliberate result of judicial reasoning and determination, regardless of whether it was made by the clerk, by counsel or by the judge" — citing Ford v. Tinchant, 49 Ala. 567; Bessemer Irrig. Ditch Co. v. West Pueblo Ditch Reservoir Co.,65 Colo. 258, 176 P. 302; Ives v. Hulce, 17 Ill. App. 30 and other cases. Other cases are reviewed in annotations in 10 A.L.R. 588, and 67 A.L.R. 842.
In U.S. v. Williams (C.C.A.) 67 F. 384, 386, a case where the trial judge had signed a decree without reading it and, after the expiration of the term, set it aside, the court said: "We can conceive of no reason why the parties to a suit, or the court, for that matter, should be bound to any greater extent by a decree of that kind than by a judgment or decree erroneously entered in consequence of a mistake of the clerk as to the character of a judgment directed to be entered. In both cases the record is affected with the same vice, in that it is made to bear witness to judicial action that was never in fact taken."
See In re New England Oil-Refining Co. (C.C.A.) 9 F.2d 344; Bostwick v. Van Vleck, 106 Wis. 387, 82 N.W. 302; Chase v. Whitten, 62 Minn. 498, 65 N.W. 84; Bemmerly et al. v. Woodward,124 Cal. 568, 57 P. 561. *Page 97
Ambiguity and inconsistency in a decree is an irregularity which the trial court may cure after the expiration of the term. Clemens v. Gregg, 34 Cal. App. 272, 167 P. 299; Sabine Hardwood Co. v. West Lumber Co. (D.C.) 238 F. 611; 34 C.J. p. 236.
Being of the opinion that the district court had jurisdiction to modify the decree, and that it committed no error prejudicial to plaintiff, I dissent.