Ellis v. Keller

82 Ind. 524 | Ind. | 1882

Woods, J.

Proceedings to correct a judgment. The judgment was rendered against the appellant by default, at the June term, 1878, of the circuit court, and the correction made, upon motion at the ensuing November term. The appellant was served with notice, and appeared at the hearing of the motion, and now claims to have made a number of objections to the proceedings; but the record shows only a general exception to the order for the correction, no ground of objection being stated. The bill of exceptions is also defective in that it does not contain a copy of the motion on which the court acted. A reference is made by the clerk to' a copy which precedes the bill of exceptions; but, as is well settled, such reference can be made only to documents, which, in the place referred to, are proper parts of the record. The motion in question was to obtain the correction of a clerical misprision, whereby, in the entry of the judgment, the plaintiff’s name was written Kelley instead of Keller. Such correction, it has been determined, may be made upon mere motion, which is not, like a complaint, subject to a demurrer (Conway v. Day, 79 Ind. 318, and cases cited), and which, therefore, can be made a part of the record only by bill of exceptions or by an order of court. There was, however, no error in the action of the court. The complaint and summons, upon-which the default and judgment were entered, were faultless, except that in the endorsement on the back of the comprint, designating the day of the term to which the summons should be made returnable, the name of the plaintiff was written Kelley. The name on the face of the complaint and in the summons being right, and the summons having been duly served, the jurisdiction was complete, the judgment was not invalid, and there was in .the record ample evidence upon which the correction could be ordered, if, indeed, a formal correction in such a case be necessary.

The proceedings for the correction of such mistakes are not governed by the 99th section of the code. See Miller v. Royce, 60 Ind. 189, and cases cited.

Judgment affirmed, with costs.