Walker v. Armour

Breese, J. This was an application to grant a new trial, as at common law, in an action of ejectment, on the affidavit of the counsel in the cause, which the court denied, and exception taken and an appeal to this court. The record of the cause shows that the defendant had notice and appeared by the affiant as his attorney. The cause was tried by a jury and a verdict rendered for the plaintiff. It might be possible, had the judgment been entered by default, the court would, on the affidavit filed, set it aside and let in the party to make his defense; but where there has been a trial on the merits, and the statute allowing a new trial as of course, if the application is made within one year after entering the verdict and judgment, on the payment of costs, we see no necessity or propriety for the application as made. Nor do we think the reasons stated in the affidavit, sufficient to authorize a new trial. They would not have continued the cause on Application for that purpose. The court therefore, did right in refusing the application. It is also objected, that the similiter was not added to the plea of not guilty before the trial. This is certainly, if at all necessary, cured by the verdict. Waters v. Simpson, 2 Gilm. R. 577. In our practice, the plea of not guilty is the issue, and so understood, and the similiter a mere form, which the defendant may add if he chooses. If the plaintiff takes action in the case, after the general issue pleaded, the want of a similiter is never considered ground of error. Williams v. Brunton, 3 Gilm. R. 625. It is objected also, that the verdict and judgment does not find the quantity of estate the successful party had in the premises recovered, whether in fee, for life, or what other estate. The original record as filed, presents that defect, but an amended record has been filed, in which the estate found does appear to the extent declared for, that is, a fee simple estate, and a formal judgment entered therefor. It is objected, however, that this amended record, is not the record in the cause, and affidavits are presented to show that since the original entry of the verdict and judgment on the record book, the clerk has interlined it, by specifying the estate held by the plaintiff in the ejectment. Was it the fact, that words specifying the estate, had been struck out of the original entry, so as to render the judgment erroneous, it would be competent, although a record imports absolute verity, to prove by witnesses, that 'such words were improperly struck out. Dickson v. Fisher, 1 Wm. Bl. 664; same case, 4 Barrow, 2267. If this be so, then affidavits or any other proof of that nature, could not be received to falsify the record, by showing that an alteration whereby the record was made correct, was improperly made. We must take the record, certified to this court to be the true record, and no affidavits can be received to falsify it. We must understand, that the words supplied by interlineations by the clerk, are the words which should have been in the original entry, to make it correspond with the fact, and as the record entry had not been signed by the judge, it was competent for the clerk to make the correction according to the fact. The judgment is affirmed. Judgment affirmed. Note.—The cases between the same plaintiff below, and Elizabeth Kniffen and David Buel, are affirmed.