Hackfeld v. Ludovico

OPINION OP THE COURT BY JUDD, C.J. The defendant appealed from a judgment against him in the District Court of Honolulu to the Circuit Court, First Circuit, jury waived, where judgment was rendered against him on the 17th August, 1895. Judgment was entered up by the clerk [349] on 2d September, as of the August term, for $296 damages,. $94.35 interest and $26.15 attorney’s costs, and the execution should have issued for $417.10, the total of these amounts, whereas the clerk, looking at the wrong docket, issued on the 19th December, 1895, execution for $341.80 only. The execution was returned by the marshal, satisfied, before the error was discovered. On the 24th March, 1896, the plaintiffs moved before the Circuit Judge for an alias execution for the balance of the judgment, $75.30 and costs. Notice was served on defendant’s attorney and a hearing was had on the 1st April, upon the affidavits of plaintiffs’ attorney and the clerk, and it appearing to the court that the original execution was for a wrong sum, on the 4th April it granted the motion, costs to be paid by plaintiffs. Exceptions were taken by defendant to this court. Kinney & Ballou, for plaintiffs. A. Rosa, for defendant. We find no error here. “The issuing of an alias writ is no doubt always within the province of the court while the judgment continues in force.” Ereeman on Executions, Sec. 52. The case before us is not like that cited by defendant’s counsel, where the execution issued for the proper sum and the plaintiff directed a levy for a smaller sum, and the court refused to issue any further writ. People ex rel. Ransom v. Onandaga C. P., 3 Wend. 331. Whereas in this case the execution was issued for the wrong sum by the mistake of the clerk, the propriety of ordering a second writ is indisputable. See Ereeman, Secs. 53 and 54, even where a satisfaction of judgment has been entered. The doctrine is, as laid down in Wilson v. Stilwell, 14 Ohio St. 467, that every court has control over its process, and of entries upon its records, and where process is irregularly issued the court has power to inquire into it and correct the error. The practice is quite uniform to do this on motion. The exceptions are overruled.