The opinion
EDMONDS, J.,
Dissenting. — In failing to perceive that the order appealed from was the correction of a judicial error and not an alteration made necessary by inadvertence or misprision, the majority opinion, I believe, has departed from the well established rule which compels a contrary determination. A court, so the rule declares, may correct clerical errors or mistakes in its records and proceedings because such correction does not change a judicial act previously done, but is an alteration to make the record speak the truth. It may also set aside judgments and orders made prematurely, or through inadvertence, as this presents no question of judicial review upon the merits- But it has no power, once it has made a decision after regular submission of the case, to set aside or amend for judicial error, especially when the only reason for so doing is that the judge has come to a conclusion contrary to that expressed by the earlier adjudication. (Stevens v. Superior Court, 7 Cal. (2d) 110 [ 59 Pac. (2d) 988 ], and cases cited; Harth v. Ten Eyck, 16 Cal. (2d) 829 [ 108 Pac. (2d) 675 ], at p. 832.)
Here the evidence shows without contradiction that the trial judge signed the findings of fact and the judgment after *217 having them under consideration for several weeks. No other findings in the, case were presented. He had before him also a letter of protest from defendant’s counsel charging that they were, at least in part, “pure bunk.’’ In his order he stated that he intended to pronounce judgment in favor of the defendants and the decision affirming it is placed, in large measure, upon his declaration to that effect.
The recitals in an order of a trial judge that a judgment was signed by him as a result of a clerical error are not conclusive upon an appellate court (Estate of Burnett, 11 Cal. (2d) 259 [ 79 Pac. (2d) 89 ]; Stevens v. Superior Court, supra), and in the present case, the record is absolutely devoid of any evidence to support the statement that a clerical error was made. On the contrary, there is ample support for the conclusion that any error committed in giving judgment for the plaintiff was a judicial one and subject to correction only upon timely motion for a new trial or by appeal.
Houser, J., concurred.
Appellant’s petition for a rehearing was denied January 15,1942. Edmonds, J., and Houser, J., voted for a rehearing.