Hop Bitters Manuf'g Co. v. Warner

Brown, J. A motion to amend an interlocutory decree by striking out the award of damages, upon affidavits tending to show that if all the facts in the ease had been put in evidence, and called to the attention of the court, a different decree would have been rendered, is a novelty in equity practice which we are not disposed to sanction. Errors in judgments or decrees are divided into errors clerical and errors judicial. The former may be amended even after term, provided the existence of such error is shown by the record, and not otherwise. Hudson v. Hudson, 20 Ala. 364; Thompson v. Miller, 2 Stew. 470; Dixon v. Mason, 68 Ga. 478; Russell v. McDougall, 3 Smedes & M. 234; Atkinson v. Railroad Co., 81 Mo. 50; Selz v. First Nat. Bank, 60 Wis. 246; S. C. 19 N. W. Rep. 43. Errors judicial can only be amended upon rehearing or appeal. Forquer v. Forquer, 19 Ill. 68; Stringer v. Anderson, 23 W. Va. 482. Wo have found no case which would justify us in altering this decree, upon motion, in a material particular, upon the evidence then before the court. Much less can it be done upon evidence sought to be injected into the case by affidavits. Defendant’s only remedy, if at this late day he has any remedy at all, is to have the decree set aside, and move for leave to introduce the new testimony, and for a rehearing.