I am unable to give my assent to the disposition made of this case by the majority opinion. The right of recovery is based upon the rentals of the properties involved as of April 1, 1941. The complaint throughout its several causes of action alleged that the emergency price control act so provided, and then alleged that, on April 1, 1942, the rental was a certain sum for each property rented. That this latter date is a clerical error is plainly manifest because what the rentals were on a date other than April 1, 1941, was immaterial and furnished no basis for a cause of action if the rentals charged and collected exceeded those amounts.
The appellants have not brought here any statement of facts showing whether the verbal testimony, if any there was, on the subject of rentals was with reference to April 1, 1941, or April 1, 1942, but there are two exhibits certified by the trial judge in the statement of facts (exhibits 2 and 17) which show the rentals of the properties involved in two of the causes of action upon which recovery was had as of April 1, 1941.
Although appellants were the defendants and the losing parties in the trial court, their counsel prepared the findings of fact, and in such findings he carried forward the same error as to the year 1942 as appeared in the complaint. In view of the foregoing exhibits, I can indulge in no other *Page 210 assumption than that he followed the wording of the complaint when he prepared the findings of fact and did not observe that the year 1942 was an error. As the findings read with the date of April 1, 1942, they, of course, do not support the judgment as a matter of law.
When the appellants presented their motion for a new trial, they were represented by their present counsel, who stated to the court that he wished to present certain enumerated points, eight in all, the fifth being that "the findings of fact do not support the judgment." The statement of facts filed by appellants and certified by the trial judge is limited to what occurred when the motion for a new trial was presented and the memorandum decision of the court and the certificate of the trial judge as to the exhibits in the case.
It does not appear that the above-quoted question raised was argued or that the attention of the court was called to the discrepancy in dates in the complaint and findings and the exhibits. When the case reached this court on appeal, the appellants raised the same question they did in the court below, that the findings of fact did not support the judgment, and based their argument upon the claim that the record did not show what the rentals for the properties were on April 1, 1941, but only as of April 1, 1942. When the attention of counsel for respondents was called to the discrepancy in dates, they applied to the trial court for an order of correction, and one was entered September 19, 1944, nunc pro tunc as of February 25, 1944, the date the findings of fact were signed by the trial judge.
I agree with the majority opinion that the nunc pro tunc order was entered without jurisdiction, for the reason stated therein; but I believe the order gives us such reliable information that the discrepancy in dates is a clerical error that we should do whatever is necessary in order that we may hear the appeal on its merits.
Section 1737, Rem. Rev. Stat. [P.C. § 7322], provides, in part, as follows:
"Upon an appeal from a judgment or order, or from two or more orders with or without the judgment, the supreme *Page 211 court may affirm, reverse or modify any such judgment or order appealed from, as to any or all of the parties, and may direct the proper judgment or order to be entered, or direct a new trialor further proceedings to be had; . . ." (Italics ours.)
Pursuant to this statute, we have remanded cases to the trial court for further proceedings, so that some issue could be determined that could not be decided on the appeal. Jenkins v.Jenkins University, 17 Wn. 160, 173 (on petition for rehearing), 49 P. 247, 50 P. 785; McNeff v. Capistran,120 Wn. 498, 208 P. 41; Harrison v. Consolidated Holding Co.,200 Wn. 434, 93 P.2d 729.
It was not contemplated by any of these cases that, after the trial court acted, the record should be resubmitted to us to consider further the appeal; but it seems to me that, not only by virtue of the statute and the cases just cited, but also by virtue of our inherent powers as an appellate court, we have the power to remand for the correction of an error and to direct the corrected record to be submitted to us for final action on the appeal. I think, instead of reversing the judgment and ordering the action dismissed with prejudice, we should remand, with instructions to cause the complaint and findings to be amended and corrected, and then to transmit the amended and corrected record to this court.
The appellants have raised some important questions on their appeal which should be decided by us at this time, and I believe the course I have suggested should be taken.
February 28, 1945. Petition for correction of record denied. *Page 212