Bean v. Conway Savings Bank

10 A. 818 | N.H. | 1887

The third error assigned is abandoned. The substance of the others is, that the sum for which conditional judgment was rendered was changed in the record to the actual sum due, out of term time, without proper notice to the plaintiff in error and opportunity to be heard, and against his objection, after the writ of possession had been executed, recorded, and returned to the office of the clerk. It is an insuperable objection to the maintaining of this writ that the suit was not seasonably commenced. More than three years after judgment had elapsed when the writ was sued out. G. L., c. 221, s. 6. The claim is made that it is not barred because it was brought within three years from the time the record was corrected. The judgment rendered at the April term, 1883, was not reversed or annulled by the correction made in the record in vacation in January, 1884; nor was another judgment rendered by the change that was made. Whether the clerk could of his own motion, or by direction of a justice in vacation, correct a mistake apparent upon the face of the record, is a question which need not be considered. If the mistake could not be corrected except in term time and upon notice to the parties, or upon a writ of error, the change made in the record was inoperative. If the clerk had power to correct the mistake, there was no error in what was done.

Suppose the judgment is reversed: what then? Conditional judgment must be rendered for the sum inserted in January, 1884. When a judgment is reversed on error, such judgment is given as the court below should have given. Eames v. Stevens, 26 N.H. 117; Bedel v. Goodall, 26 N.H. 92. A judgment is not reversed on error when justice requires the same judgment to be renewed. Chamberlain v. Sterling, 26 N.H. 115; Burt v. Stevens,22 N.H. 229; Claggett v. Simes, 31 N.H. 56, 63. A party cannot complain of an error which has done him no harm. Johnston v. Jones, 1 Black 209; Chittenden v. Brewster, 2 Wall. 191; Brobst v. Brock, 10 Wall. 519; Sanderson v. Taylor, 64 N.H. 97; Bac. Ab., Error (K) 4. Nor is a decree reversed though erroneous, if no benefit will result to the complainant from the reversal. Washington v. Ogden, 1 Black 451. In this case the plaintiff was not harmed by the correction of the error apparent upon the face of the record. A smaller and correct sum was substituted for the incorrect sum inserted in the conditional judgment as the amount due upon the mortgage debt to be paid by him if he should choose to redeem.

No ground for relief is shown. The plaintiff complains, not of the original judgment which was erroneous, but of the "corrected judgment" (so-called), in which there was no error, and at most an irregularity only in the mode in which the correction was made. A writ of error does not lie for an interpolation in the record; nor are irregularities in judicial proceedings grounds for error, but for amendment by the court where the proceedings were had. Claggett v. Simes, 31 N.H. 22, 33. If the plaintiff's position were sustained, the correction of the error of which he complains would leave the judgment standing against him for more than the amount due upon the mortgage debt.

If the mistake which was made in computing the amount due upon the mortgage debt needs a more formal correction, the plaintiff has an ample remedy by moving to bring forward the original action at the trial term for that purpose. McIntire v. Carr, 59 N.H. 207; Abbot v. Renaud,64 N.H. 89; Boody v. Watson, 64 N.H. 162, 173.

Writ dismissed.

CLARK, J., did not sit: the others concurred.