Bales v. Brown

57 Ind. 282 | Ind. | 1877

Biddle, J.

rNotice and motion to correct a record by a nunc fro tunc entry, brought after the term at which the record was made had expired.

The notice states, that the court, at a previous term, had rendered judgment in the case against J ackson Bales, Stephen Bales and Thomas I. Earr, hut, by a misprision of the clerk, the judgment was entered against J ackson Bales alone; that afterward Thomas McGrinnis entered himself as replevin bail upon the judgment, as rendered, against all the defendants, and moved the court to correct the record hy a nunc pro tunc entry, so as to show that the judgment was rendered against the three defendants, instead of only one.

The defendants jointly demurred to the motion for want of facts, and the defendants Jackson Bales and Thomas McGrinnis jointly demurred for misjoinder of parties in making them defendants.

The court overruled the demurrers, and the appellants excepted. They then answered, and the cause was heard hy the court, and the record ordered to he corrected hy a nunc pro tunc entry, as moved. The appellants prepared the case, and appealed from the judgment to this court.

This proceeding is simply a motion made upon notice to the opposite parties, and all interested in the ease were properly notified. Such a notice does not contemplate adversary pleadings, like an original civil action. It is auxiliary to the preceding record in the case, and not an independent suit. The pleadings, however, and the rulings of the court upon them, are harmless.

There is a hill of exceptions in the record, filed upon overruling a motion for a new trial. It contains certain evidence, hut it does not inform us that it contains all the evidence given at the hearing of the motion. The court below doubtless decided correctly; at least there is nothing in the record that shows us to the contrary. Nunc pro tunc entries to correct records may he made at any time, on notice, when there is something preceding the misprision, hy which the correction may he made. Fite v. Doe, 1 Blackf. 127; Songer v. Manwaring, 1 Blackf. 251; King v. Anthony, 2 Blackf. 131; Smith v. Myers, 5 Blackf. 223; McManus v. Richardson, 8 Blackf. 100; Makepeace v. Lukens, 27 Ind. 435.

The judgment is affirmed, with costs.