The court has a wide discretion,50 and such action may be taken by the court though no written motion has been filed therefor." Where the question submitted is one of law upon which the argument has been heard, the court may, on setting aside an erroneous judgment on its own motion render the proper judgment without rehearing the case. 52

After special findings are filed and judgment rendered, the pow

substituting another corporation as defendant and entering judgment against it under the guise of an amendment. Id.

District court has no power to vacate or modify its judgment for "an irreg ularity in obtaining a judgment or order" under Rev. Laws 1910, § 5267, subd. 3, on motion filed after adjournment of term at which judgment was rendered and entered. McCornack v. Fleming (Okl.) 172 P. 952; McAdams v. Latham, 96 P. 584, 21 Okl. 511.

After a final judgment has been rendered, and the term expires, there must be a substantial compliance with the statute, in order to give the court further jurisdiction over the same. McAdams v. Latham, 96 P. 584, 21 Okl. 511. 50 The district court in the furtherance of justice has a wide discretion in the matter of opening judgments and modifying proceedings had before it, if done at the same term, and if all the parties are present and no advantage is taken of either party. Hogan v. Bailey, 110 P. 890, 27 Okl. 15; Barnes v. Bruce, 63 Okl. 270, 165 P. 405; Wood v. Steil, 112 P. 1004, 27 Okl. 595.

The setting aside of certain orders and judgments in a suit to restrain the collection of taxes, made on application filed at the term at which they were made and entered, held proper. Blake v. Baker (Okl.) 167 P. 329.

Where judgment was rendered for defendant on the pleadings for failure of plaintiff's attorney to file a verified reply required to make an issue on a receipt attached by copy to defendant's answer in a personal injury case, and on the following day plaintiff appeared by newly employed counsel and moved that the judgment be vacated and a new trial granted, held, that the court did not abuse its discretion in granting the motion. Philip Carey Co. v. Vickers, 38 Okl. 643, 134 P. 851.

51 The court on its own motion may set aside an erroneous judgment during the term at which it was rendered. Georgia Home Ins. Co. v. Halsey, 133 P. 202, 37 Okl. 678.

A judgment of a court of general common-law jurisdiction may be set aside, vacated, or modified by the court during the term, though no written motion is filed therefor. Barker v. National Oil & Development Co., 49 Okl. 782, 154 P. 518.

Defendants in attachment having offered to confess judgment for the debt, the court rendered judgment therefor, and also sustained the attachment proceedings. Held that, his attention being called to the matter, he could, in his discretion, set aside the judgment as to the attachment, and let the rest stand. Jaffray v. Wolf, 1 Okl. 312, 33 P. 945.

52 Georgia Home Ins. Co. v. Halsey, 133 P. 202, 37 Okl, 678.

er of the court is exhausted, except that it may at any time before the close of the term grant a new trial.53

Where service is had on a nonresident defendant by publication, and the affidavit for publication fails to state that the property therein described has been attached,54 or the affidavit purports to have been made on information and belief, it may, after judgment, be amended to show the truth.55

A proof of publication may be amended.5

Where a defendant has been properly served with summons, he is in court for every purpose connected with the action, and must take notice of an answer and cross-petition filed by a defendant who, on his own application, was made a party after the answer day named in the summons, and he cannot have a judgment on the cross petition vacated on the ground that the summons did not show the cross petitioner to be a party.57

Courts of general common-law jurisdiction have control of all judgments, and may vacate them during the term at which they are rendered, and a motion invoking such power filed during such term gives the courts full power to act at a subsequent term.5

53 Brown v. Capital Townsite Co., 96 P. 587, 21 Okl. 586.

58

54 Where the affidavit for service by publication on a nonresident defendant fails to state expressly that the property therein described has been attached and is sought to be subjected to plaintiff's debt, as provided by Code Civ. Proc. § 72, but it may be inferred from what is stated, the affidavit is only voidable, and may be amended, even after judgment, so as to embody such statement, and when so amended it will relate back to the commencement of the action. Long v. Fife, 25 P. 594, 45 Kan. 271, 23 Am. St. Rep. 724.

55 An affidavit for publication was correct, except that, at its close, it purported to have been made on information and belief. Held, that this qualified the positive declarations, and made the affidavit defective, but not void, and, after judgment, it might be amended. Harrison v. Beard, 2 P. 632, 30 Kan. 532.

56 Where service is made by publication, in an action under Comp. Laws 1879, § 72, c. 80, and the notice is regular in form, but it appears from the proof of publication that the notice was first published only 37 days before judgment, such proof may, after judgment, be amended, in order to show that the notice was in fact first published 44 days before date of judgment. Hackett v. Lathrop, 14 P. 220, 36 Kan. 661.

57 Curry v. Janicke, 29 P. 319, 48 Kan. 168.

58 Blake v. Baker (Okl.) 167 P. 329; Philip Carey Co. v. Vickers, 38 Okl. 643, 131 P. 851.

The district court held to be without jurisdiction at a subsequent term to

Where the trial court, having jurisdiction both of the parties and the subject-matter, regularly renders a judgment, it is without power, after the expiration of the term, to set such judgment aside because of an error.59 It has no jurisdiction to set aside on motion a final order or decree after the expiration of the term at which

vacate a judgment or order of voluntary dismissal and reinstate the cause under Rev. Laws 1910, § 5267, subd. 3, without a substantial compliance with section 5268 (section 6095), relative to proceedings to correct mistakes, omissions or irregularities by motion on notice. Rollow v. Frost & Saddler, 54 Okl. 578, 154 P. 542. Where an action to quiet title and cancel a conveyance is dismissed on plaintiff's application pending a demurrer to the petition, such dismissal ís a judgment or order, within Rev. Laws 1910, § 5267, authorizing the district court to vacate or modify its own judgments or orders. Id. Where the district court at a subsequent term made an attempted order vacating a judgment of voluntary dismissal and reinstating the cause, without written notice or application and reasonable notice to the adverse party, held, that there was not a substantial compliance with Rev. Laws 1910, § 5268, and that the order was therefore void. Id.

Under Rev. Laws 1910, § 5267, subd. 3, the district court has no power to modify its judgment on account of an irregularity upon a motion filed after adjournment of the term at which judgment was rendered and entered. Guy v. Guy, 50 Okl. 233, 150 P. 1058.

Under Rev. Laws 1910, § 5267, subd. 3, the district court has no power to vacate its judgment on account of an irregularity upon a motion filed after adjournment of the term at which judgment was rendered and entered. Guy v. Guy, 50 Okl. 233, 150 P. 1058; Continental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511.

The discretionary power of the court to vacate its own judgment held not lost by continuance of the motion to vacate, until the term of court next after that at which the judgment was rendered and the motion filed. Parks v. Haynes, 52 Okl. 63, 152 P. 400.

After final adjournment of term at which final judgment is rendered, compliance with Rev. Laws 1910, §§ 5267-5269, must be shown to give court ju- · risdiction to vacate judgment. Maston v. Chandler Building & Loan Ass'n, 61 Okl. 230, 157 P. 366. Under Rev. Laws 1910, § 5268, motion which does not seek to correct mistakes or irregularities of clerk or irregularities in obtain ing judgment and that is not made within first three days of next succeeding term after judgment was rendered is without merit. Id.

Under Wilson's Rev. & Ann. St. 1903, § 4760, the district court has power to vacate or modify its judgments at or after the term at which such judgment or order was made, and where allegations to vacate are based on chapter 66, § 562, division 3, for irregularity in obtaining the judgment, and a motion to vacate is made at the same term at which the judgment is rendered, on reasonable notice, the court has jurisdiction, though the motion is not decided until a subsequent term. Stark Bros. v. Glaser, 91 P. 1040, 19 Okl. 502.

59 National Surety Co. v. S. H. Hanson Builders' Supply Co., 64 Okl. 59, 165 P. 1136.

it was rendered unless steps to secure such action have been taken during the term.60

In the absence of specific statutory authority, a judge of a court of record has no jurisdiction, sitting in chambers to set aside a judgment.61

A county court has only such power to review or vacate its orders as is conferred by statute.62

Where the special findings require the entry of a judgment thereon notwithstanding the general verdict, a judgment entered on such general verdict is irregular and may be set aside at a subsequent term.68

After the term, mistakes in descriptions and names of parties and the like, in a judgment may be corrected and record of the judgment changed to conform with the decision originally made, but after the expiration of the term, a judgment actually rendered must stand until it is vacated or set aside in a proceeding for that purpose. €4

64

60 Philip Carey Co. v. Vickers, 38 Okl. 643, 134 P. 851.

Where a motion to vacate a judgment was filed in the superior court dur ing the term at which the judgment was rendered, and the court continued the motion to the next term, it had jurisdiction to pass upon and sustain same. Philip Carey Co. v. Vickers, 38 Okl. 643, 134 Pac. 851.

A judgment not void cannot be set aside on motion after expiration of the term, unless attacked in due time pursuant to some express statutory procedure. Schultz v. Stiner, 155 P. 1073, 97 Kan, 555, rehearing denied 157 P. 265, 98 Kan. 45.

61 Releford v. State, 45 Okl. 433, 146 P. 27.

A district judge at chambers has no jurisdiction to set aside a judgment theretofore rendered. W. L. Moody & Co. v. Freeman & Williams, 104 P. 30, 24 Okl. 701. Jurisdiction cannot be conferred by agreement of the parties on a district judge at chambers to set aside a judgment theretofore rendered. Id.; In re Rex, 78 P. 404, 70 Kan. 221.

62 Ozark Oil Co. v. Berryhill, 143 P. 173, 43 Okl. 523; Rev. Laws 1910, §§ 5267, 5275.

An order of county court at a subsequent term vacating a judgment rendered at a former term, without complying with Rev, Laws 1910, §§ 5267-5269, in regard thereto, is void. W. T. Rawleigh Medical Co. v. Eggers (Okl.) 178 P. 108.

The county court having authority to set aside its judgments on statutory grounds at a subsequent term, the same may be set aside by consent of parties. Harrison v. Osborn, 31 Okl. 103, 114 P. 331.

63 Seeds v. American Bridge Co., 75 P. 480, 68 Kan. 522.

64 Chapman v. Western Irrigation Co., 90 P. 284, 75 Kan. 765.

A district court can correct the entry of a judgment, so as to cause it to

Where a judge discovers that his judgment is void, he may render any other judgment warranted by the law and evidence that will give the case a legal and final ending.65

The court may correct its record by a nunc pro tunc entry of proceedings which through accident, mistake, or neglect were not entered of record.66

§ 1308. Common-law powers

The inherent common-law power of courts over their judgments during the term and the common-law rights of parties to move to set same aside in nonjury cases is not impaired by Rev. Laws 1910, §§ 4728, 5267, 5269-5275, or by the statute prescribing grounds for new trials.67

§ 1309. Want of jurisdiction

A motion to strike from records of district court an abstract of justice of the peace court involves a review of validity of judgment,

speak the truth, after the expiration of the term at which it was rendered. Christisen v. Bartlett, 84 P. 530, 73 Kan. 401, rehearing denied 85 P. 594, 73 Kan. 401; Locke v. Cope, 146 P. 416, 94 Kan. 137; Birmingham v. Leonhardt, 43 P. 996, 2 Kan. App. 513; Co-wok-ochee v. Chapman, 76 Okl. 1, 183 P. 610; Cubitt v. Cubitt, 86 P. 475, 74 Kan. 353; Jones v. Gallagher, 64 Okl. 41, 166 P. 204, 10 A. L. R. 518.

It is the duty of the clerk of the district court to keep a journal in which to record the correct judgment rendered; and, in case of a dispute as to what was decided by the court, the court has the power to change or correct the record. State v. Linderholm, 135 P. 564, 90 Kan. 489.

Where one of the parties is improperly designated by the clerk in entering a judgment, it is competent for the court at a subsequent term to correct the entry so that it shall correspond with the name stated in the pleadings, and with the judgment actually rendered. Southern Kan. Ry. Co. v. Brown, 24 P. 1100, 44 Kan. 681.

An error, occasioned by the clerk wrongfully entering a judgment for a sum not found by the verdict nor warranted by the pleadings, may be cured by remittitur. Redinger v. Jones, 75 P. 997, 68 Kan. 627.

65 Dunn v. Carrier, 40 Okl. 214, 135 P. 337.

66 Faler v. Culver, 146 P. 333, 94 Kan. 123.

A claim against an estate was duly allowed, and ordered to be paid, but the probate judge neglected to make a complete entry of the allowance and order of payment. After payment had been made, and another probate judge had succeeded to the office, a nunc pro tunc order was made, authorizing the entry of the allowance and order for payment made by the former judge. Held, that the court had power to make such order. Brooks v. Brooks, 35 P. 215, 52 Kan. 562.

67 Richardson v. Howard, 51 Okl. 240, 151 P. SS7.