Burns v. Mayor of Edgefield

The Chancellor : Oil September 8, 1874, this bill was •filed to enforce the vendor’s lien retained to secure the payment of notes given for the purchase-money of land. 'Under the sale as made, the notes given for the purchase-money were dated July 1,1869, and made payable at various •dates, “with interest from date.” The last three notes were for $1,000 each, at thirty-six, forty-eight, and sixty months. The bill states that all the notes have been paid •except these last three, and upon them some small payments •only have been made. The bill further states ‘ ‘ that said corporation (the defendant) undertook, in writing, on the back of said notes, to pay ten per cent interest on two of ‘the same,” as will appear from the notes, made exhibits. On the back of the note falling due thirty-six months after •date is this indorsement: “ The amount due on the within mote ($1,180), eleven hundred and eighty dollars, is to bear interest from July 1, 1872, at the rate of ten per cent per an-num, as per resolution of the board of the 23d of July, 1873,” ■signed by W. A. Glenn, mayor, and James T. Bell, recorder. 'The indorsement on the back of the forty-eight months’ note is in the same words, except that the amount to bear •ten per cent interest is fixed at $1,240, and the interest is "to run from July 1,1873. The bill was taken for confessed against the defendant, and on October 30, 1874, a final decree was entei’ed, reciting the facts, and stating “that the balance now due upon the said three notes, after adding in the interest, as agreed upon by the parties, amounts in the ¡aggregate to the sum of $3,748.82, after allowing the ■credits indorsed on said notes.” A judgment was thereupon rendered in favor of the complainant against the defendant for this sum, and it was ordered that, if the same were not paid in thirty days, the land should be sold in satisfaction thereof under the vendor’s lien. The motion now made, April 14, 1876, is by the complainant, to amend the decree of October 30, 1874, by making the amount then due upon the two notes at thirty-six [139] and forty-eight months carry interest at the rate of ten per •cent per annum, under 1870, ch. 69, sec. 1 (T. & S. Rev., ■sec. 1944a). The motion is based upon sections 2877 and 2878 of the ■Code, which are in these words : “Section 2877. The-Circuit, Chancery, and Supreme Courts may, at any time within twelve months after final judgment or decree, and while the cause is still in such courts, amend any clerical error, mistake in the calculation of interest, or other mistake or omission in the judgment or decree, where there is sufficient matter apparent on the record, the papers in the cause, or entries of a presiding judge, to amend by. “ Section 2878. Every mistake apparent on the face of the record may be corrected by the court at any term after final judgment, at the discretion of the court.” These sections of the Code were taken from the act of 1856, ch. 70, sec. 2, with some modifications of language. That act came before the Supreme Court for construction in the case of The State v. Disney, 5 Sneed, 598. It was there said: “ After a record is made up, and the term closed, it admits of no alteration by the same court, unless for some mistake patent upon the face of the record or proceedings in the case. And we suppose nothing more than this is really meant- by the act of 1856, ch. 70, sec. 2.” The actual ruling upon the facts then before the court has no bearing upon this motion. The act was again considered in Elliott v. Cochran, 1 Coldw. 389. There, a mistake of the clerk in recasting an account, under a decree .of the court, in professed conformity with the decree, yet omitting by oversight to calculate -interest on balances, and which was shown by the report itself, wa.s amendable, both by the common law and by the statute. Judge Wright, in delivering the opinion, adds : “ As to the errors in the judgment of the court, in point of law, existing in the decree upon which the report is' based, or in unwarranted 'deductions of [140] fact — if any such, there be —. complained of by the defendant’s counsel, they, upon the principles already stated in this-opinion, are beyond our reach; the law of the decree, as-well as its conclusions upon the testimony in the cause, constitute the deliberate judgment of this court;in the case, and cannot now be changed. They do not stand upon the same-ground as the clerical errors, or omissions, of the clerk.” In Russell v. Colyar, 4 Heisk. 154, the same questions-were elaborately reconsidered, and, upon this occasion, in view of the provisions of the Code, and the court drew a. broad line of distinction between the “mistake” which was amendable, and an “ error” in the conclusion of the-court. “Mistake” and “error,” they say, are not synonymous . Error in giving the judgment cannot be corrected by the same court at a subsequent term. It is only a mistake, that is, a slip, fault, or unintentional act, such as is-contemplated by the statute of jeofails, which was intended to be embraced in these provisions. The law contemplates an amendment of a clerical oversight, not a revision of the-judgment. The object of the present application is not to correct an error of calculation, or a clerical mistake in entering the-judgment of the court. It is either to change the judgment, as in itself erroneous, or to add to the judgment something which escaped the court altogether at the time. But the first ordinance of Lord Bacon expressly provides, “ No-decree shall be-reversed, altered, or explained,” * * * but upon bill of review.” And his second ordinance-really covers all that the subsequent decisions and our statutes were intended to remedy : “ In case of miscasting(being a matter demonstrative), a decree may be explained and reconciled by an order without a bill' of review; not understanding, by miscasting, any pretended misrating or misvaluing, but only error in the auditing or numbering.” Beames’s Ord. Ch. 1, 3. The decree rendered in this case was.,, that the complain [141] ant was entitled to a judgment for the balance of purchase-money as alleged in the bill, “ after adding in the interest as agreed upon by the parties,” and judgment was rendered accordingly. It must be taken, in the absence of any written opinion or memorandum of the judge to the contrary, that it was his deliberate opinion, upon the facts set out in the pleadings and decree, that the complainant was only entitled to a decree for the amount adjudged, and was not entitled to interest at the rate of ten per cent per annum upon any part of the judgment so rendered. Whether the chancellor was right or wrong in so holding is immaterial. The error was one of law, which can only be corrected by bill of review, or appeal to a higher court. It cannot be corrected at a subsequent term by motion.