Johnson v. . Brothers

"Waleer, J., after stating tbe facts as above: Tbe motion of tbe plaintiff, while called on to retax tbe costs, is really a motion tbat tbe court- modify its former judgment as to tbe costs, by charging them against tbe defendant instead of directing, as tbe court did in its former judgment, tbat they be paid out of tbe fund. It is too late now for such a motion to be entertained, as tbe plaintiff is concluded by tbe former judgment. He should have prosecuted bis appeal from tbe judgment at tbe proper time, and having failed to do so, be will not be allowed to attack tbe judgment by this collateral proceeding. Tbe original judgment is not void, as tbe court bad jurisdiction of tbe cause and tbe parties, nor is it irregular, as it was taken according to tbe course and practice of tbe court. It was, at most, erroneous, and tbe only way to correct it, if there was any error, was by appeal. It was said in Creed v. Marshall, 160 N. C., 394: “It is well settled tbat in any case where a judgment has been actually rendered, or decree signed, but not entered on tbe record, in consequence of accident or mistake or tbe neglect of tbe clerk, tbe court has power to order tbat tbe judgment be entered up nunc pro tunc, provided tbe fact of its rendition is satisfactorily established and no intervening rights are prejudiced. If tbe written judgment fails to incorporate the true sentence or judgment of tbe cour^ through inadvertence and in consequence of clerical errors or omissions, it may be completed by an order nunc pro tunc, or may be set aside and tbe true and correct judgment entered nunc pro tunc. But tbe power to amend tbe judgment as entered cannot be used for tbe purpose of correcting errors or omissions of tbe court. No amendment can be allowed simply for tbe purpose of entering a judgment which tbe court failed to render at tbe proper time, or to change tbe judgment actually rendered to one which was not rendered. Such procedure cannot be allowed so as to enable tbe court to review and reverse its action in respect to what it formerly either refused or failed to do. 23 Oyc., 843.” Tbe law, in this respect, has very recently been fully reviewed in Mann v. Mann, 116 N. C., 353. Tbe objection here is not to tbe items of tbe bill of costs, but it is now asserted tbat all of tbe costs were taxed against tbe wrong party. This is not retaxing costs, so as to correct errors in tbe amount of tbe costs, but is an effort to amend tbe judgment because of its erroneous taxation of any of tbe costs against tbe fund or tbe plaintiff, which cannot be done. There was no excusable neglect. Tbe motion was properly denied. No error.