
    Maria Hamman v. A. Van Wagenen, Judge.
    Practice. A modification of a decree made in. vacation, without notice, is void and may be reviewed on certiorari.
    
    Saturday, April 6, 1895.
    
      Certiorari to the defendant, as judge of the district court in and for the fourth judicial district. The defendant was the presiding judge at the March term of the district court in and for Monona county in the year 1894, at which term there was pending an action for divorce of Maria Hamman, plaintiff herein, against Henry Hamman; and during said term, and on the twenty-sixth of March, a decree was entered in said case, awarding to the plaintiff a divorce, and making such a disposition of the property found to have been accumulated by both of the parties that the defendant therein was awarded the northeast quarter of the southwest quarter of section 1 of township 85, range 48, and a roadway out and over the northwest quarter of the southwest quarter of said section 1, .and requiring the defendant to pay two hundred and fifty dollars of incumbrance thereon. The decree further gave to the plaintiff the care and custody of the minor children. The March term of the court adjourned, finally, on the twenty-eighth day of March, '1894. During the vacation following said term, and on the twenty-eighth day of April, 1894, the clerk of said court so changed the decree entered at the term as to give to the defendant therein the northwest quarter of said southwest quarter of section 1, with an incumbrance thereon of three hundred dollars, and a right of way over the same to plaintiff. The basis of this action on the part of the clerk is a letter from the defendant herein, as follows: “Cherokee, Iowa, April 5, 1894. Messrs. McMillan & Kindall: Yonrs at hand, and yon may have the clerk make the change that you suggest; that is-, to give the defendant the west forty acres and three hundred dollars incumbrance, and give the others the roadway and the balance of the incumbrance. This will be the clerk’s authority to make the change. I have some doubts about the authority to make the change in vacation, but I thought I would let it be tried. An appeal would only bring the thing back for a correction of the decree, and that would give an opportunity to make a like order anyway. Yours truly, A. Van Wagenen.” This change in the decree was made without notice to plaintiff, and this proceeding is to set it aside, and cancel the change or modification to the decree as made April 6, 1894, as having been entered without jurisdiction. Under orders from Mr. Justice Kinne, a writ issued directed to the defendant, to which he has made a return.
    
      Charles Mackenzie and T. B. Lutz for plaintiff.
    There is no appearance for the defendant other than the return of the writ.
   Granger, J.

Certiorari is a proper remedy where an inferior tribunal, or officer exercising judicial functions, is alleged to have exceeded his proper jurisdiction, when, in the judgment of the superior court, there is no other plain, speedy, and adequate remedy. Code, section 3216. The petition brings this case within the provisions of the statute by the averments of fact showing the action of the defendant in directing a modification of the decree to be without jurisdiction. The record before us is a showing that the modification. of the decree entered April 6, 1894, was simply a letter from the judge, addressed to the attorneys for the defendant in the case, authorizing the change. There is an appearance by a return of the writ, and no question is made as to the sufficiency of the record on which the case is submitted. We incline to the view that there would be no contention in support of jurisdiction to make the order modifying the decree. In fact,' the letter, operating as an order for •the change, is a practical confession of its nullity.

The record of the district court made April 6,1894, changing or modifying the decree entered March 26, 1894, in the case of this plaintiff against Henry Ham-man, is adjudged a nullity, and the original decree as entered in that case will stand as conclusive as between the parties. — Reversed.  