Kowalsky

Kowalsky v. Nicholson

Good Law
1913 Cal. App. LEXIS 169·23 Cal. App. 160·137 P. 607
Court of Appeal of CaliforniaNovember 6, 1913Civ. No. 1213.California1,236 words

Opinion

Lead Opinion

Kerrigan, J.

This is an appeal from an order entered nunc pi'o tunc amending a previous order dismissing an action for lack of prosecution.

The action was in claim and delivery under proceedings in which the plaintiffs had secured possession of the property described in the complaint. After the cause had been at issue for nearly' four years the court, upon notice to the plaintiffs, granted defendant’s motion to dismiss the same for want of prosecution. Subsequently the court, upon due notice to the plaintiffs, amended its order of dismissal nunc pro tunc as of the date of its original entry by adding the following: “And the defendant is entitled to have returned to her all the property taken from her under the previous proceeding of this action of replevin, or if return thereof cannot be had, then she shall have judgment for the value thereof in the sum of $1,000.00 and for the delivery to her of the undertaking in this matter. ’ ’

The record does not show that the original entry as made by the clerk was different from the one directed by the court; and plaintiffs therefore contend that the court had no power to change the order or judgment, nor, in changing it, to direct that it be entered…

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