Carver v. Adams

The opinion of the court was delivered by Steele* J. This is a petition to amend the docket entries and record as to damages and costs, in a case which was heard in this court two years ago. It seems that as to the costs there has been already a substantial compliance with the petitioner’s claims. If this were not so, we should be unable, on petition or appeal from the clerk, to correct errors which are not apparent upon'the face of the taxation, unless such errors are disclosed either by proof, or by a report of the facts from the clerk. It is the better practice to require the appellant from the clerk’s taxation, to procure a report from the clerk of his finding upon all questions of fact material to be understood in passing upon the alleged error, so that the court may be relieved from hearing testimony upon those minor matters. The principle subject of complaint, and the only one so before us as to be susceptible of revision, is the alleged error in the docket entry of the plaintiff’s recovery in the case Adams v. Carver, of $247.13 as damages. It is admitted that this is a correct statement of the amount of the plaintiff’s recovery, but it is urged that it is called by the wrong name. The record states particularly and accurately how this sum is arrived at and made up ; that the action was debt; that the plaintiff “recovered as debt, $129.29,” and “as damages, $140.34 ;” that “ the said debt and damages amount in the whole to the sum of $269.63, and deducting therefrom the defendant’s [555] recovery in offset, $22.50, there is left a balance which it is adjudged the said defendant is in arrear, amounting to $247.13, for which, with costs the plaintiff may have execution.” It was not material whether the offset was deducted from the debt or the damages. It was entirely regular to deduct the offset from the sum of the debt and damages and the balance is properly termed the sum in arrear. The record being thus definite it is no error to name this sum in arrear as damages upon the docket or in an execution. As long ago as in Sinclair v. Gadcomb, 1 Vt. 37, it was held that the sum due in equity upon a jail bond could be recovered under the general name of damages, -or at least, to use the language of Royce, J., “the entry of judgment in that form when justice is otherwise done cannot be alleged as ground of error.” It is suggested that if the sum in arrear is entered as damages upon the docket and in the execution, it will not be in harmony with the original writ, the sum recovered being greater than the ad damnum. The writ claims debt and damages. The record shows a recovery of technical debt and of technical damages quite inside the claim of the writ. These amounts are particularly stated and from their sum the offset is deducted, and the balance, which is the real recovery, is simply called by the general name of damages. As all this appears upon the face of the record, we see no occasion to correct or amend the docket entry, and the petition is dismissed.