Shackelford v. M. P. Levy & Co.

Cooper, C. J., delivered the opinion of the court. Section 1497 of the code provides that a plaintiff in a suit in [128] sfcituted in the circuit court, recovering less than one hundred and fifty dollars, “ shall not recover any costs of the defendant unless the judge shall be of opinion, and so enter on the record, that the plaintiff had reasonable ground to expect to recover more than one hundred and fifty dollars.” The plaintiff in this action of assumpsit recovered a judgment for fifty-nine dollars and sixty-two cents, which was entered on the minutes of the court in the common form without any judgment for costs. Two days thereafter he applied to the judge, who gave to him a certificate that in his opinion the plaintiff had had reasonable grounds to believe that he would recover more than one hundred and fifty dollars. This certificate was filed among the papers of the case, but no change was made in the form of the judgment, nor was any other entry made on the record in reference thereto. At the succeeding term of the court the plaintiff moved to correct the judgment, and on the hearing of the motion the certificate of the judge was admitted in evidence, and parol evidence was heard, showing the circumstances under which it was given, and the judge himself testified as to his intentions in giving it. On this evidence the judgment was amended so as to give costs to the plaintiff, and from this action of the court the defendant appeals. At an early day in the history of this State, it was decided by this court that no judgment could be amended after the term in which it had been rendered, or judgment entered nunc pro tunc, unless the facts authorizing such action were exhibited by the record, and that notes made by the judge on the docket or memoranda found among the papers could not be considered. Burnet v. Boyett, 1 Howard 39; Dickson v. Hoff, 3 How. 165; Russell v. McDougall, 3 S. & M. 234; Rhodes v. Sherrod, 8 S. & M. 97 ; Boon v. Boon, Ib. 318 ; Moody v. Grant, 41 Miss. 565. The statute now under consideration directs that the finding of the judge shall be “ entered on the record,” which means that it shall be made of record during the time when the court has control over it. It is well settled that after the adjournment of the term in which the final judgment is entered such control is lost. The judgment amending the original judgment is reversed.