Forrester

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 judg ment 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…