1 Rand. 25 | Va. | 1821
Lead Opinion
This is a suit on a note a short time before the passage of the act changing the rate of interest from 5 to 6 per cent. The defendant confessed judgment for the debt and interest, without stating the rate, and the clerk, by mistake, in entering the judgment, gave interest at the rate of 6 per cent. A supersedeas was awarded by a judge of this court, since the late act of assembly authorising amendments of judgments, by application to the court below, at a subsequent term, or to the judge in vacation. Two questions therefore arise :
1. Whether this is a mere clerical mistake, at all times amendable on motion before the court where the judgment was entered, and consequently perhaps, not a case proper for this court.
2. Whether, if it is not such a clerical error, it is nevertheless such an error as might and ought to be amended, under the late act of assembly.
I think it is a clerical error, and was always amendable in the court below, on motion.
In the ease of Gordon vs. Frazier,
The act authorising judgments to he entered for the principal sum due, with interest thereon, says nothing
“ There is no doubt but. the court may amend, upon « motion, where a mistake is committed by their clerk, if “ there be, as in this case there was, something to amend « by.” The thing to amend by there, was the bond with its endorsements : the thing here, is the note bearing date before the change of the rate of interest.
If this was sufficient to amend by, in case of an office judgment, I cannot see why it shall not be equally proper to amend by, after confession of judgment, if that is no more the judgment of the court, as I understand to be clearly decided by the above case, than an office judgment.
But suppose this a case of mere clerical error, amend, able elsewhere, what ought to be done with it here, should the appellee not be considered as entitled to the benefit of the late act of assembly ?
We cannot affirm the judgment as it now stands $ because that would preclude an amendment below. If we reverse, then we take jurisdiction of a case in which the party had remedy elsewhere, in the nature of an original remedy, and I would assimilate it to a case of an application to this court to quash an execution for irregularity, not preceded by a motion for that purpose in the court below ; and 1 should therefore incline to think, that the correct course would be, to dismiss the supersedeas as ins-providently awarded.
In cases of clerical errors, it gave no new remedy by motion in court; but it gave a remedy by motion to the judge in vacation, and in either case makes such amendment so far a part of the original judgment, as that, by being certified to this court, on certiorari, we can affirm such amended judgment; thereby giving damages and costs against the party, who has thus improperly resorted to this tribunal.
It may be said, however, that the appellee here has not brought himself within the provisions of this act by having procured such amendment, and applying for a certiorari.
I consider, however, that this act is not only remedial, but highly beneficial, and ought to be applied, according to its spirit, wherever it can : and as this is the first case arising under it, and as a supersedéas was awarded by a judge of this court, which may have been the first notice the party had of this alledged error, I would excuse him for not applying, in the first instance, to the court or judge below, who might perhaps have felt a delicacy in proceeding, as a supersedeas had been awarded by a judge of this court: a very prudent delicacy indeed, if there is any doubt of the propriety of my opinion. I should, therefore, after intimating my opinion that it could be so corrected, give him time, before a final decision, to make that application.
2. But if I am wrong in believing this to be a mere clerical error, does not the act in question extend to errors not merely clerical ?
Suppose the case before us was not that of Bent vs. Patten, but of Gordon vs. Frazier, &c.; that it had been a judgment since the act, and not by confession, but after a verdict; and that the clerk, in entering the judgment, had been guilty of the same omissions which took place in
This court surely ought not to be burthened with the correction of such cases as this, contrary, in my opinion, to the plain intention of the law, especially when it has been solemnly decided that even errors in cases collaterally affecting the freehold and franchise were not considered by the legislature of sufficient importance to interfere with our great and legitimate duties.
2 Wash. 130,
On examination of the record in this ease, I find the defendant appeared by attorney; of course there was a defence, and the execution on which the delivery bond was taken, yvas for a debt bearing 5 per cent, interest ¡ so, that the future rate of interest was clearly before the court.
Concurrence Opinion
concurred in the following opinion, which was delivered by judge Roane, as the opirtion of the court:
This is an action of debt on a note, brought in the Superior Court, by the appellees against the appellant.
The case of Brooke vs. Roane,
in construing the 108th section of the act of Jeofails,
This construction-of that section is confirmed by the section immediately following. By that section (109th) the judgments are to be corrected in two classes of cases only, and those are only where, by a mere comparison of different parts of the record, the corrections can be safely made. One of these is by pruning down the sum found by the verdict, to the standard of that demanded by the declaration. The ideas we have .stated in relation to the 108th section are thus confirmed and acted upon in the 109th. They are all to be taken in exclusion of those mistakes which, in their nature, are purely legal, and which therefore must go for correction to an appellate court.
As for the right to release a part of the judgment in this court, claimed under the 110th section, that is restricted to the two classes of cases embraced by the 109th secJion. It is so restricted by the terms “suchjudgment” therein used. It does riot give the appellee a right to release the illegal one per cent, in this case in the appellate court.
The judgment must be, therefore, reversed with costs, and entered for five per cent, instead of six.
1 Call, 205.
1 Rev. Co. 532