Perdue v. Bradshaw

18 Ga. 287 | Ga. | 1855

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The Common Law rule is, that all judgments, whether interlocutory or final, shall be entered of record, of the day of the month and year when signed ; and shall not have relation to any other day. Still, the discretion is given to the Court or Judge to order a judgment to be entered núnc pro tunc. Indeed, it is not only competent to do this, but it seems to be almost a matter of course.

By the 66th Common Law rule of practice, adopted by the Judges of the Superior Courts in this State, it is provided that “ in all and every case, when a verdict has been obtained at Common Law andanappeal entered without judgment signed upon the said verdict, judgment shall not afterwards be signed further back than the time of disposing of said appeal.” (2 Kelly, 479.)

Feeling itself compelled by this rule, the Circuit Court refused permission to sign a nunc pro tunc judgment in this case.

This rule of practice was adopted, no doubt, to protect thn rights of third persons, which may have accrued between the rendition of the first and the final verdict. But the same ject can be secured, without prescribing an arbitrary rule, which seems to trench not only upon the Common Law, but the rights of the parties. True, by his laches, the plaintiff is. placed in a condition where the Court is entitled to grant him relief upon terms. But the punishment ought to be proportioned to the offence, and should not be vindictive. Acting upon this principle, our judgment is, that the nunc pro tuncorder should have been allowed, accompanied, however, with-the proviso, that the same should not prejudice third persons-who had acquired rights intermediate the first and second verdicts.