Assuming, for the sake of argument, that the amendment cannot be made unless there is something in the record to amend by, we answer that there is enough in the record to amend by. The order, as made, must necessarily have related to the statement on motion for a new trial. But, even were there nothing in the record to show what order was made, the Court have power, at a subsequent term, to require the Clerk to enter the order which was in fact made. The case of Frink v. Frink , 43 N.H. 514, is conclusive upon this point. It is there held that such amendments may be made upon any competent legal evidence, and many authorities are there cited in support of the position. But, independently of these considerations, the authorities cited as to the conclusiveness of judgments, and the inability of Courts to amend their records after the lapse of the term, have no application. At common law there was no such thing known as granting a new trial after judgment. After verdict, the prevailing party entered a rule for judgment. The motion for a new trial had to be made within four days after the entry of the rule for judgment, and such motion could not be made after the four days, even by consent of parties. (Tidd's Practice, 903, 912.) If a motion for a new trial were made within the four days, judgment could not be entered until the motion was disposed of. (Tidd's Practice, 930.) It is from this practice that we have derived the notion that a motion for a new trial operates as a stay of execution.
It follows, therefore, thatat common law, when judgment was entered, the motion for new trial or in arrest of judgment must have been disposed of--that the losing party must, before the entry of judgment, have exhausted all remedies for the purpose of setting aside the verdict or preventing the entry of judgment. Hence it is that the judgment, when entered, became final. Our statutes allow a motion for a new trial to be made without regard to the entry of judgment, and the motion for new trial is not made to set aside the judgment, but the verdict. If the verdict is set aside, the judgment falls with it, but the motion for new trial is directed not against the judgment, but the verdict. On appeal from an order denying a new trial, it is unnecessary to insert in the transcript a copy of the judgment. A motion for new trial may be made within ten days after service of notice of the rendering of the decision, without regard to the time when judgment is entered. Our statute allows judgment to be entered immediately upon the verdict; but this is without prejudice to the right to move to set the verdict aside and for a new trial, whether judgment be entered or not, for that is entirely immaterial. Thepractice and the rights of the moving party, and the powers of the Court, are the same as they were at common law, and whether judgment be entered or not. These views are entirely sustained by this Court in the late cases of Ketchum v. Crippen , 31 Cal. 365, and Pendergast v. Knox , 32 Cal. 73.
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
The respondent moves to strike out the statement on motion for a new trial, upon the general ground that it was not filed within the proper time.
The facts upon which the motion is based are substantially as follows: On the day upon which the finding or decision was filed, counsel for respondent served counsel for appellant with notice of such filing. Within ten days thereafter the latter served upon the former notice of intention to move for a new trial. Within five days after notice of motion for new trial counsel for appellant applied to the Court for an order allowing twenty days in addition to the time allowed by the statute for that purpose, in which to prepare and file a statement on motion for new trial, which was allowed, but by some mistake the order was entered as allowing the additional time for the purpose of preparing and filing a statement " on appeal," instead of " new trial." Subsequent to this order, and before any further action on the part of the Court was called for, the Court adjourned. At the next term, the mistake having been discovered in the meantime, counsel for appellant moved the Court to amend the order so as to make it conform to the truth, as alleged by him. The Court sustained the motion, and the order was amended accordingly. The statement on motion for new trial was filed in time if the Court had power to make the last order: otherwise not.
Under the rule in De Castro v. Richardson , 25 Cal., 49, the Court had no power to make the amendatory order; but after a careful re-examination of the question we have become satisfied that our conclusion in that case was erroneous. The general rule that a Court cannot amend its record after the adjournment of the term at which it was made, except where the record contains matter to amend by, announced in that case, is correct; but we erred in considering proceedings inaugurated or taken for the purpose of setting aside the verdict and obtaining a new trial as constituting a part of the record of the term at which the judgment was entered within the sense of that rule, which was due doubtless to the fact that the difference which exists between the making of the record at common law and under our practice was overlooked. We said: " At common law, when the proceedings have been entered of record the Courts would allow no further amendments; but by the statute of jeofails and amendments a still further right of amendment was given. The making up of the judgment roll is the equivalent, under our Practice Act, of the entry of record at common law." The former proposition is correct, but the latter is too broad, and therein lies the vice of our decision in that case. In respect to the general purpose and effect of a record, the making up of the judgment roll under our practice and the entry of record at common law are doubtless equivalents; but in respect to proceedings taken for the purpose of obtaining a new trial, they are not the equivalents of each other. The difference lies in the fact that at common law the judgment was not entered or signed until after the motion for new trial had been heard and determined. Hence the record was not made, in the sense of the rule under consideration, until the Court had finally disposed of the whole case, including the motion for a new trial; so that the proceedings on the motion for a new trial did not reach beyond or succeed the entry of judgment and the adjournment of the term, and therefore did not thereafter continue " in the breast or memory of the Judge," but like all the other proceedings in the case, existed in the record already made, which could not thereafter be altered or amended, except as already suggested. (Tidd's Practice, 903, 912, 930.)
Under our practice the rule is otherwise. The motion for new trial may be made before or after the entry of judgment or the making of the roll (Ketchum v. Crippen , 31 Cal. 365; Pendegast v. Knox , 32 Cal. 73); but in either event, as we held in the cases cited, the motion proceeds independent of the judgment, and mainly upon a record of its own, which may or may not be made at the term at which the judgment was entered, and may be made out of term as well as in. (Statutes 1863, p. 336, Sec. 25.) It is unaffected by an adjournment of the term, but proceeds all the same, whether in term or vacation, and remains in fieri until the final order granting or denying it is made; and until that time, at least, the record cannot be said to have been made, in the sense of the rule under consideration. Until then, the proceedings must be considered as being " in paper" or in the " breast of the Judge," in the common law sense of those terms, and, therefore, within the Judge's control on the score of amendment. In the sense of the rule in hand, as to a motion for a new trial, under our practice, there is no term of Court, or, if there is, it begins and ends with the motion.
Motion denied.