Janes v. Bullard

Opinion — Fleet

Van Fleet, J.

This is an appeal from an order made after final judgment refusing to vacate and set aside an order of sale issued upon a decree of foreclosure, directing a sale of real property.

In our judgment the appeal is wholly without merit.

Assuming, as contended by appellant, that the action of the clerk in inserting in the decree the amount of the costs as claimed by plaintiff, before the same had been taxed or ascertained, was erroneous, it was a mere clerical misprision, which did not affect the validity of the decree in other respects. Nor did it make invalid the order of sale issued thereon. The latter was, like the decree, erroneous but not void, and the validity of the-sale thereunder was not thereby affected. (Newmark v. Chapman, 53 Cal. 557.)

Being merely erroneous, both the decree and order of sale were amendable in that regard, and the subsequent action of the court in taxing the costs was, in effect, such amendment and a curing of the error. It was under the decree and order of sale as so modified that the property was sold, and only the amount of costs as taxed by the court was collected by the sheriff, so that appellant was in no way injuriously affected by the error complained of.

The contention of appellant that the order of sale was prematurely issued and therefore void cannot be sustained. (Code Civ. Proc., sec. 681; Los Angeles County Bank v. Raynor, 61 Cal. 146.)

The order is affirmed, with fifty dollars damages.

Garoutte, J., Harrison, J., McFarland, J., and Temple, J., concurred.

Rehearing denied.