A new trial is a re-examination of an issue of fact. ( Code C. P., § 656.) When the facts are found by the Court correctly, why ask for a re-examination of theissues of fact. Qui bono. It is urged that Subdivision 7 of Section 657, C. C. P., applies. Such is not my construction. That means such an error of law in the admission or rejection of testimony or giving an instruction as would or might have produced a change in the verdict of the jury or decision of the Court. A change in the facts found or established by proper evidence on trial. (Gambert v. Hart , 44 Cal. 542; Martin v. Matfield , 49 id. 42.)
When no errors in the admission or rejection of testimony or instructions given are assigned, and it is conceded the facts are properly found, but the Court at first comes to a wrong conclusion, it is the duty of counsel and proper practice to call the trial Court's attention to its error and have it corrected before final judgment. The trial Court has full control over its records until an appeal is prosecuted to this Court. (Browner v. Davis , 15 Cal. 9; Swain v. Naglee , 19 id. 127; Heyeler v. Hendsell , 27 id. 491; Branger v. Chevalier , 9 id. 172; Leviston v. Swan , 33 id. 480; Estate of Schroeder , 46 id. 305; Mulliken v. Hull , 5 id. 245.)
When the findings offact are defective they may be corrected on motion. (Pralus v. Jefferson G. & S. M. Co. , 34 id. 558; Hathaway v. Ryan , 35 id. 188; Cowing v. Rogers , 34 id. 648.) If the trial Court can correct an error of fact on its being pointed out, why not an error of law?
OPINION The Court:
We know of no principle that would estop the plaintiffs from claiming their commission, because the " memorandum of agreement" describes the defendant as owner of the property to be sold.
We can see no objection to the practice of changing the conclusions of law, based upon the finding of facts at any time before judgment is entered. The declaration of the general conclusion of law from the facts found, is the rendition of the judgment in so far, as that, when entered, the judgment entered may relate to such rendition for certain purposes. But this does not make the conclusions of law first announced final and beyond the reach of the Court. There is no judgment which is final until a judgment is recorded.
Judgment and order affirmed.