20 Ala. 304 | Ala. | 1852
Lead Opinion
The mistake which occurred in the calcution of the interest was clearly a mistake of the clerk. The statute devolves upon him expressly the duty of calculating
Tbe right to correct such a mistake as this, by motion to amend in tbe same court in which it occurs, at any time within three years ¿rom its occurrence, is conferred by statute upon the party affected by it. Clay’s Dig. 322, § 55.
The original judgment in this case was removed by defend-' ant, by writ of error, to the Supreme Court, at the term next succeeding that of the court below at which it was rendered. The plaintiff in error in that case neglected to file the transcript, and the judgment below was affirmed on certificate. In this way the judgment below was merged in the judgment'of this court, and no effectual motion to amend under the statute could be made anywhere; not in the court below, for it no longer had jurisdiction of the case, Wiswall v. Munroe, 4 Ala. 19; and not in this court, for there was nothing in the record to amend by. Stephens et al. v. Norris, Stodder & Co.. 15 Ala.
To hold that the mistake of the clerk, in which this state of affairs originated, or the act of the defendant in error in suing out his writ of error on that judgment, should, either separately or taken together, have the effect to deprive the plaintiff of the remedy given him by statute, to amend by motion within three years, and leave him without any other remedy, on the ground that this had been lost by his laches, is not consistent with sound reason or justice. He was not responsible for the act of the one, and could in no wise control that of the other, and upon well settled principles, he cannot be prejudiced by either or both.
The cases of McGrew v. The Tombeckbee Bank, 5 Porter, 547, 13 Ala. 540, and Drew v. Hayne, 8 Ala. 438, to which We have been cited by the counsel for defendant in error, are, as we conceive, entirely distinguishable from the case at bar, ip. the fact that .here we find no neglect properly imputable to the plaintiffs in error, for the mistake in the calculation- of the interest in the Circuit Court. The statute allowed him three years to find out and correct this by motion. But if the law-allows him to repose on'the calculation of the clerk at all, it will not hold -him to the duty of detecting the mistake by the
Under such circumstances, the case was a clear one for the exercise of the old and acknowledged jurisdiction of a court of equity to correct mistakes, and the court below erred in dismissing the bill.
The decree of the court below dismissing the bill is reversed, and the cause remanded.
Dissenting Opinion
— This bill, in my opinion, was properly dismissed. The ground of equity asserted by it is, that the clerk in computing the amount of the note made a mistake, computing it at too small a sum, and that the judge entered up judgment for the sum thus ascertained. If chancery has jurisdiction to correct this alleged mistake, it seems to me there would be no stopping point for such a jurisdiction. If the mistake of the clerk is a ground of equity, the mistake of the jury or of the judge, by parity of reasoning, is equally so. The party is as much bound to be present and superintend, either by himself or his counsel, the calculation of the clerk and entry of the judgment for the proper amount, as he is to attend to the verdict of the jury and the judgment thereon rendered. In either case, if an error is committed, he has his remedy: in the first, by moving to correct the judgment; in the second, by asking for a new trial. If, however, he waits until either remedy at law is taken away, he has no right to come into chancery. It was his duty to have been in court, and protect his interest; and failing to do this, it is impossible, it seems to me, to say that he has been guilty of no laches.
It is said, it was the duty of the clerk to make a correct calculation, and if he fail to do so, the party who had a right to repose on his act should not be prejudiced. The same may be said of the act of the jury or of the judge, and upon the
The Chief Justice concurs with me in this opinion.
