Lovejoy v. Irelan

19 Md. 56 | Md. | 1862

Bartol, J.,

delivered the opinion of this Court:

The proceedings which have heretofore been had in this case, will be found reported in 17 Md. Rep., 525. By the opinion of the Court, then pronounced, it was decided that the appeal ought to be dismissed. And after a re-argument of the question, the Court adhered to their original decision. The first decision was rendered at the June term, 1860, and the decree was signed at that term. Subsequently it was discovered, by the appellee’s solicitor, that the decree passed in the cause, instead of dismissing the appeal, in conformity with the opinion which accompanied it, was a decree dismissing the hill. And, at the June term, 1862, when the error was first discovered, this motion Avas made to have the decree amended, and the error therein corrected.

The motion is resisted on the ground tliat this Court has no power to correct the decree after the term at which it was passed has expired. In the case of Burch, et al. vs. Scott, 1 G. & J., 393, the Court of Appeals decided that a decree of the Court of Chancery must be considered as enrolled when it is signed by the chancellor and filed by the register, and the term has elapsed during which it was made. And in that case it was held, “that it was not consistent with the salutary exercise of that sound discretion which the Court of Chancery possesses, to open or discharge the enrollment upon petition, and vacate the decree, for the ■purpose of enabling the defendant to make his defence.” The general rule is, “that every decree stands, and must be allowed to stand, for what it purports to be upon its lace, until it has been revised or reversed in a proper and solemn maimer.” Pheltz vs. Pheltz, 1 Md. Ch. Dec., 455.

After a decree has been enrolled, the Court will not entertain any application to vary if, except upon consent of all parties, or in respect of matters which are of course, In Daniels’ Chancery Practice, vol. 2nd, sec. 5, page 1233, it is said: “In cases in which a clerical error has crept into the decree, or in .which some ordinary direction has been omitted, the Court will entertain applications to rectify it, even though it has been passed and entered,” And on page 1235, it is said: “The Court will, in some cases, extend the indulgence of rectifying decrees in which there have Leen clerical mistakes, to decrees which have been actually inrolled.”

In this case, we consider the error as one of that kind. It is a mere clerical error, in inserting the word bill instead of the word appeal. This clearly appears, not only from the opinion of the Court, accompanying the decree, and to which il was meant to conform, hut also from the minutes of the Court. And, in such case, we entertain no doubt of tbe power of the Court to correct the error, which is as manifest as if it appeared on the face of the decree.

(Decided December 3rd, 1862.)

In making the correction, it is not necessary to pass a new order or decree, but in conformity with the course pursued by the Yice-chancellor, Plumer, in Hawker vs. Buncombe, 2 Mad., 392, (or 546, Isi American edition,) this Court will now proceed to direct the clerk to bring before them the original decree, and the enrollment thereof, and in their presence to correct the same, by inserting the word appeal in place of the.word bill, so that the decree may direct that the appeal be dismissed.

Motion granted.