Pollard v. King, 62 Ga. 103

Pollard v. King

62 Ga. 103 | Ga. | 1878

Bleckley, Justice.

1. Authentication of the original bill of exceptions by the certificate of the clerk is indispensable, unless waived. Leave to withdraw for the purpose of procuring the omitted authentication may be granted here at any time, on application, under the act of 1877, liberally construed. Eeturn in time for hearing before the particular circuit is gone through, will, of course, be at the risk of the plaintiff in error. The case in 58 Ga.. 599, was not within the act of 1877, being one of the class of cases expressly excepted in the act itself.

2. Bankruptcy of a defendant in a judgment has been held to be no cause for not amending the judgment — 45 Ga., 117.

3. The signature to a judgment may be supplied by an order of the court to sign nunc fro tune by way of amendment. The want of a proper signature is a mere defect, and, under the Code, all defects which are not by statute declared incurable, or which are not so in their very nature, may be healed by amendment. Compare 54 Ga., 486; 47 Ib., 92; 50 Ib., 208; 57 Ib., 153. To say the least, the court has a discretion to allow an amendment like the one now under consideration, even after the lapse of a lengthy period of time. Ten years, or more than ten years, will constitute no insurmountable- obstacle. Some old things *106may not be worth repairing, but a judgment, if kept from becoming dormant, ought generally to be amended whenever a defect in it is discovered. Age need not exclude it from the hospital in which younger patients of its class receive treatment.

4. We think, however, that the exact order passed by the court was not the one adapted to the case or to the application. The application was for an order to sign the imperfect or defective judgment which had already been entered up. The order was, not to do that,'but to enter a judgment nunc pro tunc. The difference between the two things is considerable, and in affirming the judgment granting the order, we shall direct the terms of it to be changed, both for the sake of conformity to the application and to meet the real exigencies of the case.

5. The affidavit of illegality was not sustainable upon the facts in the record. The affidavit denied that there was any judgment; but there was a judgment — defective and imperfect, it is true, but still a judgment. It was susceptible of amendment, and, therefore, was not a nullity. To issue an execution upon it, before it was signed by the plaintiff or his counsel, was grossly irregular — Code, §3568. But as the judgment was not void, neither was the execution void — Code, §4, ¶6.

In affirming the judgment, we do so with direction that the order to enter up a judgment nunc pro Pane be modified so as simply to supply the omitted signature to the original irregular judgment, as prayed for in the application for leave to amend.

Judgment affirmed.