This is an appeal from an order granting a motion to amend a judgment theretofore rendered and entered.
Upon a hearing had on February 28, 1908, of defendant's motion to dismiss the action for want of prosecution the court, as disclosed by the minute entry of the clerk, ordered the cause dismissed without prejudice. Thereafter, on August 26, 1908, the court rendered judgment wherein it was recited that the dismissal was by consent of parties and omitted to state that such dismissal was without prejudice. This judgment *Page 173 was signed by the judge of the court and duly entered by the clerk on August 28, 1908.
Thereafter, more than six months having elapsed from the rendition and entry of such judgment, plaintiff, pursuant to notice thereof, made a motion to have the same amended, the ground therefor being that the judgment so rendered did not conform to the order of dismissal made February 28, 1908, as shown by the minute entry of the clerk, in that it omitted to state that such dismissal was had without prejudice and recited that it was made by agreement of the parties. This motion was based upon the records and files in the action and upon certain affidavits presented. At the hearing thereof the court granted the motion, and on March 22, 1909, ordered the judgment amended in accordance with the form and substance of a proposed judgment, copy of which was attached to the notice of motion and served upon defendant.
The court erred in granting this motion and in making the order from which defendant appeals.
No doubt exists as to the power of the court to allow amendments, regardless of the lapse of time, where the record as entered by the clerk fails to conform to the judgment rendered by the court. (Freeman on Judgments, sec. 70;Egan v. Egan, 90 Cal. 15, [27 P. 22]; City and County v.Brown, 153 Cal. 644, [96 P. 281]; Williams v. Hayes,68 Wis. 248, [32 N.W. 44].) That judicial errors committed by the courts in the rendition of judgments cannot be thus summarily corrected is equally well settled. (Brackett v.Banegas, 99 Cal. 623, [34 P. 344]; Jacks v. Baldez, 97 Cal. 91, [31 P. 899]; Blondeau v. Snyder, 95 Cal. 521, [31 P. 591].) While the court has the inherent right and power at any time to cause its acts and proceedings to be correctly set forth in its records, it cannot, under the pretense of the form of an amendment of its record, thus correct or revise a judgment which it has in fact rendered. (Kaufman v. Shain,111 Cal. 16, [52 Am. St. Rep. 139, 43 P. 393].) In the case at bar the rendition of the judgment which it was sought to amend was the judicial act of the court. Attached thereto was the signature of the judge of the court. As thus solemnly attested it was duly entered by the clerk. "To entitle a party to an order amending a judgment, order, or decree, he must establish that the entry as made does not conform to what *Page 174 the court ordered." (Freeman on Judgments, sec. 70.) Respondent does not claim that there was any mistake on the part of the clerk in entering the judgment, but contends that the court erred by reason of the fact that the judgment rendered fails to conform to the order upon which it was based. If so, it was a judicial error, as to which the court had no power to correct by the amendment ordered. As said in Egan v. Egan, 90 Cal. 15, [27 P. 22]: "If it should be admitted that the court ought to have included the provisions of this stipulation in its decree, its failure to do so was an error resulting either from a misconception of the law applicable to the facts before it, or from a failure to give sufficient consideration to those facts. In either case it was an error of law committed at the trial, which the defendant should have sought to remedy through her motion for a new trial." So in the case at bar. If it be true that the court should in its rendition of judgment have followed the order of dismissal, its failure so to do was an error, but whether due to fraud, inadvertence, want of sufficient consideration of the order, or other cause, it was nevertheless an error of law which could not be corrected by the summary order from which this appeal is prosecuted.
The order appealed from is, therefore, reversed.
Allen, P. J., and James, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on September 26, 1910, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 27, 1910. *Page 175