The superior court, by its order of November 19, 1901, purported to correct the minutes of its action on December 2, 1899, in rendering judgment against the petitioner herein, so that the same might correctly set forth the judgment then pronounced and rendered. The order sets forth a judgment which it declares is "the true and correct judgment as the same was in fact made, given, and rendered by the court on the second day of December, 1899," and orders "that this order be entered nunc protunc as of Saturday, December 2, 1899."
The power of a court of record to cause its acts and proceedings to be correctly set forth in its records, and for that purpose to cause its records to be corrected in accordance with the facts, is undoubted. (Kaufman v. Shain, 111 Cal. 16.1) The court cannot, however, under the form of an amendment of its records, make of record a judgment that was never in fact given. Such action by it will be set aside upon proper proceedings therefor. The party affected by such amendment may show that the order therefor does not correctly set forth the judgment which was in fact rendered. The defendant in a criminal case is given the right to appeal from any order after judgment which affects his substantial rights, but whether his substantial rights are affected by such order cannot be determined, unless he can have a bill of exceptions showing the facts in reference thereto. If the order made herein November 19, 1901, has the effect to change the judgment which was rendered December 2, 1899, his substantial rights are affected thereby.
The order does not upon its face purport to render a new judgment, or to change the judgment theretofore rendered, and the judgment which is set forth therein as the actual *Page 23 judgment rendered by the court on December 2, 1899, is identical in terms with the judgment which is set forth in the transcript on appeal from that judgment, and which was affirmed in this court October 11, 1901. (People v. Ward, 134 Cal. 301.) If this is in fact the judgment which was then rendered, the superior court was justified in refusing to settle any bill of exceptions thereon, but, as the petitioner has the right to appeal from the order and to show that the court erred in finding that it was the same judgment, the court should settle a bill of exceptions in reference to said order. I therefore concur in the judgment.
McFarland, J., concurred in the foregoing opinion.
1 52 Am. St. Rep. 139.