Partridge v. Harrow

Beck, J. The error in the judgment, as shown by the petition, was not the result of fault or negligence of plaintiffs, but of a mistake of the clerk. Prom the effect of this mistake plaintiffs will lose a part of the sum justly due them from defendants unless they can have relief by this or some other proceeding under the law. Under section 3499 of the Bevision, such relief could have been had, leaving out of view the effect of the affirmance of the judgment in this court, if proper application had been made within one year. Section 3500. But that term had elapsed before the discovery of the mistake, and for that reason the relief could not have been sought under that provision. It is unnecessary therefore to inquire whether the fact that an appeal had been taken and the judgment affirmed, operated to deprive the plaintiffs of their remedy by motion in the .District Court. — 99 — Being without a remedy at law, and the mistake the result of no fault of plaintiffs, equity will grant them relief. Cohen v. Dubose, 1 Harper Ch. 102; Hiatt's Heirs v. Heirs of Calloway, 7 B. Monroe, 179. The fact that the judgment of the District Court had been affirmed in this court did not deprive that court of jurisdiction of this case. The judgment as entered in the District Court was appealed from and affirmed, but that affirmance does not operate to prevent the correction of the judgment by the District Court in respect to a matter that was not passed upon by this court. The petition shows that the affirmance of the judgment in the amount as rendered by the District Court was also a mistake, aud it cannot be doubted that such mistake may likewise by proper proceeding be corrected. The District Court erred in sustaining the demurrer and in dismissing the plaintiff’s petition; its judgment is therefore reversed and the cause is remanded for further proceedings. Reversed.