Armstrong v. Robertson

COLLIER, C. J. — The .notice .accompanying'the'transcript, though not dated, was doubtless-issued -previous to time of its service, and should have been-proceeded .on at the term then next succeeding. There .is nothing in .the .record to show that the motion, indicated by it, was then made, or at any time thereafter ; and as,the notice was not brought before the Court, at the term the defendant .below was informed that a judgment would be moved for against him, it spent its.force, and could not thereafter .furnish .a warrant for the exercise of jurisdiction.” Broughton et. al. v. The State Bank, 6 Porter’s Rep. 48 ; Lyon v. The Bank, 1 Stewt Rep. 442. Again: the notice sent-up with the transcript, does not au-thorise us to consider it as a part, of,the record for any purpose. It is not recognized either.byuhe judgment,-or,previous entries, and-must.therefore, beiregarded as.a mere nullity not entitled to any consideration. Lyon v. The State Bank, 1 Stewt Rep. 442; Curry v. The Bank of Mobile, 8 Porter’s 372; Bates v The Planters’ & Merchants’ Bank, 8 Porter’s Rep. 99. The notice then, being out of .-the way, the proceedings certified in the transcript,-previousvto the Spring Term.of the Cir<-cuit Court, 1840, are the.-statement of a case between the plain [168] tiffs below and the defendant, at the. Spring and Fall Terms, 1836, “ continued for want of papers,” and at the Spring Term, 1839, “ continued by consent.” At the Fall Term, 1838, a case is stated between the plaintiffs below, and Franklin Robinson, “ continued on the defendants affidavit.” At the time the first judgment was rendered, so far as we are informed by the record, there was no cause pending in Court, and but for the ap-pearánce of the defendant, that judgment would have been wholly unauthorized, for the want of a notice. And though the appearance of the parties, and a submission to a decision by the Court, may have authorized the procedure, yet, it is clear, that the judgment is, in itself, erroneous. Taking every fact recited in it as true, yet it does not shew a liability on the part of the plaintiffs — it affirms, that Franklin Robinson was sheriff of Lowndes County, and, as such, was guilty of the default, for not returning the execution, for which it charges the plaintiff. The irregularity of the first judgment is conceded by the defendants in error, but it is insisted, that it is removed, by the amended judgment, subsequently rendered. In considering this argument, we must inquire into the power of Courts to allow amendments of their judgments. At the common law judgments were amendable, during the term at which they were pronounced, (and not after) because they were regarded as rolls of that term, and so in the breast of the Court, during its continuance, subject to be altered or set aside. [1 Bac. Ab. 145; Commonwealth v. Cawood, 2. Virg. cases, 527; Hall v. Williams, 1 Fairf Rep. 278; State v. Calhoun, 1 Dev. & Bat. Rep. 374; Freeland v. Field, 5 Call. Rep. 12.] And anciently the same strictness prevailed in regard to all the proceedings in a cause; afterwards a more liberal practice was introduced, and amendments were allowed at any time, pending the suit, and until final judgment was entered and enrolled. [Smith v. Jackson, l Paine’s Rep. 486.] But as- the Courts at the common law proceeded with great caution in permitting amendments, rarely going beyond matters of form, and then only where there was something in the record, by which to amend, the purposes of justice required that the liberty should be extended; and it has accordingly been done, both in Great [169] Britain and this country, by statutes enacted from time to time upon the subject. The only statutory provisions which we have in regard to the amendments of judgment by the Circuit or County Courts, are the thirty-sixth section of the act of 1807, “ establishing superior Courts, and declaring the powers of the territorial judges,” apd the fifth section of the act, of 1824, “ to regulate pleadings at common law,” which are as follows “ no summons, writ, declaration, return, process, judgment, or other proceedings, in any of the Courts of this territory, shall be abated, arrested, quashed, or reversed, for any defect, or want of form; but the said Courts respectively, shall proceed and give judgment, according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects or want of form, in such writ, declaration, or other pleading,' return, process, judgment or cause of proceeding whatsoever, except those only in case of demurrer, which the party demurring; shall specially set down and express, together with the demurrer, as the cause thereof; and the said courts respectively, shall and may, by virtue of this act, from time to time amend all and every such imperfection, defect, and want of form (other than those which the party demurring shall express as aforesaid) or any mistake in the Christian name or surname of either party, sum of money, quantity of merchandize, day, month, or year, in the declaration or pleading, the name, sum or quantity, or time, being right in any part of the record or proceeding.” &c. Again: “ The Circuit and County Courts respectively, shall and may at any time within three years after final judgment, upon the application of. either party, amend any clerical error, or misprision, in calculation of interest, or other mistake of a clerk, where there is sufficient matter apparent upon the record to amend by; and no cause shall be reversed for any such error or defect, by the Supreme Court, unless the Court of original jurisdiction, where the same was determined, shall, upon application,refuse the amendment.” [Aik. Dig. 265. 6.] The act of 1807, declares that judgment shall not be reversible for “ any defect or want of form,” but such judgment shall be rendered “ as the right of the cause and matter in law” [170] shall require, “ without regarding any imperfections,” &c. This statute authorises the process and pleading to be amended, but says nothing in regard to the amendments of judgments ; but this, as we have seen, is provided for by the act of 18.24. The latter act authorises “ the Circuit and County Court respectively,” to “ amend any clerical error,” “ where there is sufficient matter apparent upon the record to amend by.” In the case before us, without admitting that the mistake in the first judgment was a “clerical error” it.hás been already shewn, that there is nothing in the record, by which it could have been amended. The notice sent up, we have seen, is no part of the record, and none of the entries transcribed from the minutes of the Court characterize the plaintiff as a sheriff. The amendment then, was unauthorized; and such has been the construction of a similar statute in other states. [Waldo v. Spencer, 4 Conn. Rep. 71; Atkins v. Sawyer, 1 Pick. Rep. 351; Speed v. Hawn, 1 Mour. Rep. 19; People v. McDonald, 1 Cow. Rep. 189. The judgment of the Circuit Court is reversed, and, as the present case cannot be further proceeded in, the cause will not be remanded.