Ex parte Sanford

COLLIER, C. J. In Russell, ct al. v. Peirce, [7 Porter’s Rep. 276,] we decided, that an order dissolving an injunction could not be revised on writ of error, but the only mode of bringing it before this court, was by an appeal under the act of 1836, and under the influence of that opinion the writ of error sued out in that case was dismissed. If the facts now shown by the papers before us, had been rnade known when the judgment on certificate was asked, we should have refused to render it, on the ground of a want of jurisdiction: first, because the clerk of the circuit court, was not authorised to award a writ of error to review an order in chancery. Secondly, because the order complained of was not revisable on error. This being the case, is it competent now, at the term after the judgment of affirmance has been rendered, to vacate it ? It has been said, that during the term the records are in the breast of the court, and may be amended; but after the term, no amendment can be made, unless it be the correction of a clerical misprision. [Freeland v. Field, 6 Call’s Rep. 12; Hall v. Williams, 1 Fairf. Rep. 278; State v. Calhoon, 1 Dev. & Bat. Rep. 374; Halley v. Baird, 1 H. & M. Rep. 25; see also Hopkins v. Flynn, 7 Cow. Rep. 526.] But it has been repeatedly held, that where a judgment has been rendered in which the court had no jurisdiction, it is competent for the court, at a succeeding term, to state the facts on the record, and declare the invalidity of the judgment. Thus in Hammer v. McConnell, [2 Ohio Rep. 32,] process issued against two and was served on one only, the declaration was against the party served, who alone pleaded, but the verdict and judgment was against both; the judgment was considered to be amendable at a subsequent term, by striking out the name of the defendant, who was not before the court. In Hill v. West, [1 Binn. Rep. 486,] one of the two defendants died before judgment, judgment was entered against both, and a writ of error was sued to a higher court, 564 where it was non-prossed; afterwards, upon error coram vobis,, the death of one of the defendants was assigned for error, and an amendment was permitted, by entering a suggestion of the defendant’s death with the same effect as if done before judgment. [See also Rudesil v. Lesene, 2 Rep. Con. Ct. 58.] So in ex parte Crenshaw, [15 Peters’ Rep. 119,] the Supreme Court of the IL States set aside a judgment which it had rendered at a preceding term, on the ground, that the defendant in error had not been served with a citation, and did not appear. In the present case, we cannot regard the form of the certificate as intez’posing an obstacle to the allowance of the motion. Its form is unusual and would lead to the conclusion that the judgment at law had been injoined, and of course all errors in the record of that case, either impliedly or expressly released. Besides, it indicates that the writ of error was intended to bring up the order of dissolution, or final decree, (had one been rendered) from what is recited in it of the « six per cent, damages for delay, &c.” From all the papers which have been laid before us, we think it sufficiently apparent, that this court had no jurisdiction of the case to which the certificate refers, in the manner in which it was sought to be reviewed. The judgment of affirmance is consequently set asido and for nothing held.