Dunwell v. Warden

By the Court — Atwatee, J. — The Plaintiffs took judgment by default against the Defendants November 5th, 1858. The summons and complaint were dated, (as appears from the paper book,) October 4th, and the complaint sworn to on the 5th of the same month. It further appears that the summons was served upon tlie Defendants upon the 8th and 15th of October, 1858. On the 25th of April, 1861, an order was obtained on behalf of the Defendants, that the Plaintiffs show cause before the Hon. E. 0. Palmer on the 27th of the same month, why the judgment and all subsequent proceedings . should not be set aside and vacated. This order was based upon an affidavit, showing that there was no proof that no answer had been received, except an affidavit of Theodore French, one óf Plaintiffs’ attorneys, which appeared by the jurat to have been sworn to on the 5th day of October, 1858, some days before the summons was served. After argument upon this order, leave was granted the Plaintiffs to' move for an order amending the record, and the motion to vacate was held open until the 11th day of May, when the motion to amend was heard and submitted. This motion was made upon the affidavit of Charles C. Lund. On the 30th day of May the attorneys for the Plaintiffs served on the attorneys for the Defendants two other affidavits, one by Philip A. Roche and the other by J". Mainzer,. accompanied by a notice that “ the affidavits hereto attached and served upon you, will be handed and submitted to the Hon E. C. Palmer, Judge of the above named Court, to be read and used upon the motion made by and on behalf of said Plaintiffs on the 11th day of May, 1861, at a special [290] term of said Court for an order amending the record in this cause.” On the 8th of June an order was made and filed denying the motion to vacate, and granting that to amend the record. From this order Defendants appeal. The entry of judgment was clearly irregular, as the affidavit on which it was based was defective and did not show that no answer had been received within the time required by statute. But it was not necessarily void, and if in fact it was properly entered, we think it was competent for the Plaintiffs to show the fact; and that consequently the Court was right in entertaining the application for leave to amend, and in withholding its decision on the order to show cause until after the hearing of that application. Section 94!, page 544, Compiled Statutes, confers upon the Court full power to correct mistakes of this nature, when it can be done in furtherance of justice. In this case there is no complaint on the part of the Defendants against the judgment on its 'merits, but only as to the regularity of its entry. ."While the Defendants are entitled to urge this objection the Plaintiffs have also the right to meet it, by showing'that in fact the requisitions of the statute have been complied with ; and the Court has the power to make the record correspond to the facts, when 'by so doing the ends of justice will be,furthered. But the submission of the additional affidavits of Roche and Mainzer by the Plaintiffs, on the 30th of May, after the hearing of the application to amend, and without leave of the Court, or opportunity to the Defendants to be heard thereon, was clearly irregular and unauthorized. These affidavits had an important beariug on the case, perhaps even more so'than that of Mr. Lund, read at the hearing of the motion. They state facts showing that the word “ October ” in the jurat should have been “ November,” and from the opinion of His Honor, Judge Palmer, on file, it is manifest these affidavits were considered by him, and that his decision was based in part at least upon them. When a motion is made the opposing party has the right to know what affidavits and other papers and evidence will be used in support of it, that he may prepare to meet them by counter proof; and he [291] has also the right to be heard in argument upon the whole proofs when submitted. To allow supplemental proofs to be introduced as these were, would deprive him of both these privileges. The proper way to adduce additional evidence after the submission of a motion to the Court, is to apply for leave, which being granted, the -additional papers should be served upon the opposite party, with notice that they will be .presented to the Court at a time and place -mentioned. Or otherwise, by regular notice and service- of papers, as on an original motion. The adverse party will then be allowed the same opportunity to oppose them, that he enjoyed upon the first hearing in regard to the proof then introduced. The affidavit of Mr. Lund may have been sufficient to satisfy the Court that the error in the record was a mere clerical one, but we cannot so determine. The Court considered the incompetent proof, and as it was of an important nature, we cannot say it was not.influenced thereby. The order should therefore be'reversed, but without prejudice to either party, or both, to renew their motions.