
    Simeon T. Perry, Trustee, Appellant, v. Frank J. Kaspar et al.
    
    5 Correction of Record by Motion: To correct a record under Code, sections 243, 244, the correction must be made during the term at which the record was made, as provided by section 243.
    
      1 2 3 4Motion to retax costs. Under Code, section 3864, providing for theretaxation of costs on the application of any party aggrieved,. and that “in such retaxaiton all errors shall he corrected,” 2 error in the allowance of an attorney’s fee on foreclosure can-3 not be corrected by such motion, since the right thereto is de4 termined as a part of the judgment, and the error is inherent therein, though the fee allowed by the contract is to be taxed as costs.
    8 Wrongful allowance oe attorney fee. No relief can be bad by motion, under Code, sections 4091, 4093, providing for the correction of “mistakes or omissions of the clerk, or irregularity in obtaining judgment or order,” for the wrongful allowance of an attorney’s fee on the foreclosure of a mortgage, as the error is inherent in the judgment itself, and the proceedings for correction, on the grounds enumerated in section 4091, should be by petition, under section 4094, and be commenced like an original action.
    7 .Proceedings Subsequent to Judgment in Party’s Favor: Notice to attorney. After rendition of judgment in a party’s favor, lie is not chargeable with notice of subsequent motions in the cause unless actual notice has been given him, and after the rendition of judgment, the signing of the record, and the apparent conclusion of the case, he cannot be bound as to subsequent proceedings therein by service of notice on his attorneys, except in cases of appeal and retaxation of costs and like cases, especially provided for by statute.
    6 -Appeal: Presumptions: Corrections of Record. It must be presumed on appeal, where nothing otherwise appears, that the judge did his duty in signing the record, pursuant to Code, section 242.
    
      Appeal from Pottawattamie District Court. — Hon. Walter I. Smith, Judge.
    Tuesday, February 5, 1901.
    1 The facts to be considered on this appeal are as follows: In October, 1894, the plaintiff brought suit to .foreclose a mortgage on certain land of which Agnes Simanek was then ■owner, Frank J. Kaspar and wife being the mortgagees. Agnes Simanek was joined as party defendant. Decree was ¡entered by default, and there was an allowance of $120 as attorney’s fees, the statutory affidavit not being filed with the original papers, but on the day the decree was entered. At the same term Agnes Simanek filed a motion to retax costs and set aside the allowance of attorney’s fees, on the ground that the affidavit was not prop*'erly filed, but no action thereon was taken at that term. The decree was entered January 22, 1895, and the motion to set aside the allowance of attorney’s fees was filed March 26, 1895. The property was sold on execution February 25, 1895, to the plaintiff for the amount of the judgment, including costs and attorney’s fees, and, the payment therefor made, and tbe attorney’s fees were paid to tbe attorney, James B. Meilde, who receipted for the same. In March, 1898, notice was served on tbe attorney, James B. Meilde, tbat tbe motion filed by Agnes Simanek would' be called for bearing March 26, 1898. Resistance was made to tbe motion, and one or more affidavits were filed by each party, and on tbe bearing tbe allowance of the attorney’s fees was set aside for failure to file tbe statutory affidavit with tbe original papers. From this action of tbe court, tbe plaintiff appeals.
    
    Reversed.
    
      Duffy, Gaines & KeTby and John A. Blory for appellant.
    
      Moyne & Hazelton for appellees.
   McClain, J.

4 There is no contention but tbat tbe allowance. of tbe attorney’s fee Avas improper. Wilkins v. Troutner, 66 Iowa, 557; Sweney v. Davidson, 68 Iowa, 386. Tbe question is whether tbe defendant is entitled to relief in this proceeding. Appellant contends tbat this is a motion to retax costs, and tbat such motion does not reach tbe error complained of. In this position we think appellant is correct. Tbe statutory provision as to a motion to retax costs, which was in force at tbe time this motion Avas originally'filed, was tbe same as tbat now found in tbe Code, section 3861,'as follows: “Any person aggrieved by tbe taxation of a bill of costs may, upon applicataion, have the same retaxed by tbe court, or by a referee appointed by tbe court in Avhich tbe application or proceeding was bad, and in such retaxation all errors shall be corrected1.” Tbe motion here contemplated is not a motion for a modification of a‘ judgment or decree already rendered, but to direct tbe court’s attention to tbe action of its officers, in pursuance of a judgment or decree, with a view of correcting any errors which they may have made. Fairbairn v. Dana, 68 Iowa, 230. While it is true that- tbe attorney’s fee alloAved by the terms of'the contract is to be taxed as costs, ‘ nevertheless the right to such fee is to be determined by the court in rendering judgment-, and the right to attorney’s fees in this particular was determined by the court in its original judgment. The propriety of the court’s action-could then have been tested, and any error in the judgment could- have been corrected. It was subject to the same methods of review and correction as any other portion of that j udgment. It was not necessary to wait for the action of the ■ clerk in taxing the attorney’s fees to determine whether any error was committed. Therefore it was incumbent on the defendant to proceed to question the correctness of the judgment, and he could 'not raise the question by a motion to retaxthe costs. The necessity of a motion to retax the costs before-asking a review of the judgment in that respect on appeal is-that, in an ordinary case of taxation of costs, the question to-be raised by the motion has not otherwise been presented to-the trial court, and no question not thus presented can be con- - sidered on appeal. But the question as to the right to attorney’s fees in this case has been presented to the trial court The judge had been called upon to determine whether there-was such an affidavit in the case as entitled the plaintiff to-have a judgment entered for attorney’s fees. In reaching his conclusion in this matter, the judge committed an error, due-perhaps to inadvertence, but nevertheless an error which inhered in the judgment itself. Therefore the relief' which the lower court gave was not proper relief, un- - der a motion for a retaxation of costs. Ainley v. Insurance Go., 113 Iowa, post.

Appellee contends that, while this motion may have been improperly named, it really did ask relief to which appellee was entitled,'and was properly sustained either as a motion for the correction of the record, under sections 243, 244 of tliepresent Code, or for the vacation or modification of the judgment, under Code, sections 4091, 4093. The difficulty with, the first of these .contentions is that Code, section 243, provides that the record “may .be, amended or any entry thereim expunged at any time during the term at which it is made or before it is signed by the judge.” The correction in this case was not made during the term at which the record was made. There is no evidence before us r.as to when the record was signed by the judgs, but Code, -section 242 (which contains substantially the same provisions as were in force at the time the judgment was entered), contemplates that the records shall be signed at the term, or possibly at the next term; but there is no provision by which the signing is to be postponed beyond the succeeding term, and the action of the court in modifying this judgment was not taken until three years after the judgment.was entered. It must be presumed that the judge did his duty in regard to signing the record. Without attempting now to determine just what is the full scope of Code, sections 243, 244, it seems clear to us that the court cannot, on a motion to correct the record, modify a judgment duly entered and properly made of record many terms ■prior to that at which the correction is attempted to be made. 'Certainly, the records of courts are not to be left hung up in an ambiguous position by reason of the pendency of some motion made after the entry of judgment, and of which, as is true in this case, the opposite party was not notified.

In this connection, it is proper to refer to a contention that the attorney for the appellant had knowledge of the motion at the time it was filed.' It is sought to charge him with knowledge by a letter set out in appellee’s amendment to abstract, purporting to have been written by him to the attorneys for appellee in September, 1895, .saying ■that he did not care to contest that part of.the motion relating to attorney’s fees. It does not appear how this letter gets 'into the record, but assuming that it is correctly there, it does not, in our opininon, charge the appellant with notice of said ■motion. After the rendition of judgment, appellant was not •chargeable with notice of motions in the case except as novtice thereof was given. Wetmore v. Harper, 70 Iowa, 346; Insurance Co. v. Duffie, 67 Iowa, 175. Surely, it is not contemplated that, after the rendition of judgment, the signing of the record, and the apparent conclusion of the case, one who was a party to'the proceeding can be bound as to subsequent. proceedings by the mere knowledge of, or even formal notice to, the attorney who acted in the case. The notice necessarily must be such notice as to revest the court with jurisdiction, and jurisdictional notice could not be secured by service on an attorney. The only exceptions to this rule, we imagine, are those where the statute expressly authorizes a notice of further proceedings to be given to an attorney who appeared in the case, as, for instance, where notice of appeal is thus authorized, or authorizes such notice by implication, as in the case of motion to retax costs or proceedings to amend the record, as authorized in Code, section 213. The attorney who wrote this letter did not at this time appear in court in behalf of appellant with reference to this motion. No doubt it he had done .so with authority the court would have had jurisdiction, but the court got no jurisdiction whatever over appellant with reference to this motion until such jurisdiction was acquired in 1898, by appearance of his attorney in resistance to the motion. Can it be supposed for a moment that service of notice of this motion in 1898 on the attorney who represented plaintiff in the court in 1895, when the judgment was rendered, would revive the jurisdiction of the court over the party ? Such contention would seem to ns to be wholly untenable. We conclude, therefore, that the court- had no authority in 1898 to correct the record duly entered in 1895, even though the motion under which such correction was made was filed before the end of the term at which the judgment Avas entered, it not having been filed until after the judgment was fully entered on the record.

Finally, with reference to the contention that the court properly sustained the motion in 1898 under the authority of Code, sections 4091, 4093, we have to say that the motion does not come within the grounds of correction specified in section 4093, which “are mistakes or omissions of the clerk, or irregular! tity in obtaining judgment or order.” If it had been on one of these grounds, it might have been prosecuted as provided by that section, if “served on the adverse party or his attorney, and within one year,” but it is not for these grounds. There was no mistake or omission of the clerk, nor was there any irregularity. The error was one inhering in the judgment itself. Proceedings for correction on grounds enumerated in Code, section 4091, are to be by petition, under Code, section 4094, and1 the proceeedings are to be commenced as those in any other original action. The action of the court in sustaining the motion was erroneous, and must be reversed.  