28 S.E. 191 | N.C. | 1897
Facts: On 16 March, 1893, L. L. Morehead, B. L. Duke, and L. Green executed their promissory note to the plaintiff. At October Term, 1893, on action brought on verified complaint, a final judgment was entered against Duke and Green, no process having been made on Green nor answer filed by Duke. By consent, said judgment was canceled and case continued, and in December, 1893, personal service on Green was made. At June Term, 1894, a final judgment by default was entered against Duke and Green, neither one having filed an answer and no amendment made to the complaint. The judgment has remained, no judgment yet against L. L. Morehead, nor have any rights of third parties intervened. At January Term, 1897, after due notice, a motion was made to "correct and amend" the judgment of 1894 by inserting after the names Duke and Green the words "as sureties," and it was so ordered by his Honor, who held that the judgment at June Term, 1894, was irregular, and in that there was error.
(112) There can be no relief under the Code, sec. 274, as that is a remedy for a mistake of the party, and it must be within one year. A judgment nunc pro tunc means to enter a judgment now, which was intended then, and there is no evidence that the court intended to enter a judgment other than that which was entered.
An erroneous judgment is one entered regularly, but contrary to law, and cannot be set aside at a subsequent term of the court. The only remedy is by appeal or certiorari.
An irregular judgment is one entered contrary to the course and practice of the court, as without service of process. Wolfe v. Davis,
A judgment by default on a note for the payment of money only, against one who fails to appear and answer the complaint, is regular in all respects. Walton v. Walton,
Was the judgment irregular? It is the record of what was actually done, and not of what might have been done. The note was the joint and several obligation of all the signers to pay money, with no indication as to who was principal or surety. The creditor was entitled to a judgment. The Code, sec. 2100, extends to defendants, in actions upon contract, who insist that they are sureties, the privilege of having that fact found by the jury and indorsed by the clerk on the execution, etc. Is it the course and practice of the courts to see that such evidence is produced, and then, upon the verdict, insert that fact in the judgment, in the absence of the defendants and without any averment or request on their part to do so? Could the court have intended to do so? We think not. So the judgment cannot be irregular and cannot be amended by inserting (113) what was not intended at its rendition. This conclusion dispenses with the necessity of considering whether the application was made within a reasonable time.
Reversed.
Cited: Banking Co. v. Morehead,
