Ralph v. Prester, 28 Miss. 744

Ralph v. Prester

28 Miss. 744 | Miss. | 1855

Mr. Justice HaNdy

delivered the opinion of the court.

The record in this case shows the following state of facts: —

In March, 1845, the plaintiff in error instituted an action of assumpsit against the defendants on a promissory note; and on the 4th December, 1845, the case having then come on for trial, a verdict was returned by the jury for the plaintiff for the sum of $4,800.73, but no judgment was rendered on the verdict. The case passed from the docket, and remained in this condition until the 6th December, 1852, on which day the plaintiff’s attorney caused notice to be served on the defendant, Saunders, and on the 8th day of the same month on one of the attorneys who had defended the suit for Prester, notifying them that a motion would be made in behalf of the plaintiff on a certain day of the approaching term of the Wilkinson Circuit Court for judgment on the verdict rendered in the case as above stated.

It appears that Prester was a non-resident of the State, and had been for three or four years before the motion was tried; that no service' of the motion was made upon him, and that there was no appearance by or for him on the hearing of the motion. It came on to be heard at June term, 1854, when it was overruled, and the plaintiff thereupon prosecuted his writ of error.

In support of the decision of the court below, it is insisted that the suit was discontinued and beyond the power of the court below when the motion was made, by the rules of the common law. This position is sustained by authority, and is founded on good reason. Bacon, Abr. title Pleas, P. pi. 1 and 2. The case not having been continued either by order of the *751court or by operation of law, was at an end, and no further step could be taken in the prosecution or consummation of it, unless it were authorized by some statutory provision. "Was the motion, then, embraced by any statute of this State ?

We have but one statute which has any bearing upon such a case, and that is the act of 1822, § 96, Hutch. Dig. 877, which provides that where in the record of any judgment or decree any mistake, miscalculation, or misrecital of any sum, &c., name or names, and there shall .be among the records of the suit in which such judgment or decree shall be rendered, any verdict, bond, or writing whereby such judgment or decree may be amended, an amendment may be made either by the court in which the judgment or decree was rendered, or the judge thereof in vacation, upon reasonable notice being given to the opposite party, his agent or attorney in fact or at law.

This statute applies solely to the correction of judgments and decrees, and could not be extended to other defects than are specifically enumerated, without doing violence to the terms employed. It is to be presumed that the legislature never supposed that a caser would occu of a verdict rendered upon which the court would fail to render judgment in due season, and therefore that they have made no provision for such a case. But we are not warranted in extending a specific provision beyond the case plainly intended, because the omission complained of would result in an injury of a like nature to that provided for in the statute. The legislature has not seen proper to provide for it, and the court has no power to do so.

It is insisted in behalf of the plaintiff in error, that it was competent for the court at any time to render judgment upon the verdict; and 2 Tidd, Pr. 933, is relied upon as an authority for such power. But, upon examination, it will be found that that authority has reference to cases where the court has not lost its power over the case by discontinuance, as where it stands upon reargument, or under advisement, or upon motion in arrest of judgment or for a pew trial. It is said that in some instances, where the judgment had been signed at a previous term, the court would give leave to enter up judgment at a sub*752sequent term. But this rule is not well defined, and is said to be a matter of discretion and indulgence by the court. The better and safe rule upon the subject is thus laid down in Bac. Abr. supra, “ upon a demurrer, or after a verdict given, if the court give time to consider of their judgment, they must give day to the parties, because they can determine nothing in the absence of the parties, and the command of the writ being complied with by the defendant’s appearance and the effect of the writ answered, it is at an end; and the court can give time only from one term to another; for if they could give day to a second term, they might give it to a fifth, twentieth, or one hundredth, and they would have power to delay ad infinitum.” 6 Bac. Abr. by Gwillim & Dodd, 370.

But if we were disposed to allow the discretionary rule above referred to in any case, it could not be applied to this, because of the great lapse of time ; for it is held that it will not be allowed after such a length of time, as to raise a presumption that the debt has been paid. Flower v. Boling-broke, 1 Strange, 639. Plere the motion was not made until the lapse of more than seven years after the verdict was rendered, and the case had passed from the docket. If a judgment had been rendered on ■ the verdict, the plaintiff would have been barred by the statute of limitations from enforcing it by execution, at the time this motion was made; and certainly he should not be permitted to have a greater period of time to perfect his judgment after verdict, than he could have had to enforce his judgment if it had been properly entered.

The judgment is, therefore, affirmed.