40 Ill. 105 | Ill. | 1864
The rule to join in error has expired, it is true, but the defendant is hot, therefore, necessarily in default. He might have been put in default at any time after the expiration of the rule, by motion on the part of the plaintiff for that purpose. Until that is done, he may join in error or interpose any proper motion, at any time, even after the expiration of the rule. The defendant’s motion is in apt time.
Mr. Nelson" then asked leave to attach to the certificate of the clerk a revenue stamp nunc pro tune, should the court deem that necessary to be done.
Per Cubiam : The counsel may attach a revenue stamp to the certificate, and cancel the same nunc pro tune. The defendant’s motion to dismiss the cause will be denied.
The stamp being attached, the court suggested to the counsel for the defendant that he was under a rule to join in error.
Mr. HosmeB) for the defendant, thereupon moved the court for a continuance of the cause upon the ground that the judgment in the court below was incorrectly entered of record by the clerk, as shown by an affidavit on file and the minutes of the judge.
He desired a continuance of this cause, that he might apply to the court below for a correction of the erroneous entry of the clerk, and asked the award of a writ of certiorari.
Mr. Nelson again insisted upon his cross motion for a reversal of the judgment for non-joinder in error.
Per Curiam : From the affidavit and minutes of the judge below, a certified copy of which is before us, there appears to be a fatal discrepancy between the judgment actually pronounced and that which was entered of record by the clerk. The cause will be continued to give the defendant here, who was the plaintiff below, an opportunity to apply to the Circuit Court for the correction of the entry, and a writ of certiorari will be awarded, that the record, when amended, may be brought here.
The continuance is allowed upon the defendant’s paying the costs of the present term; and, should he, upon his application to the court below, obtain such correction of the record as will remove the errors complained of, he will be required to pay the entire costs of the proceedings in this court. It was the duty of the plaintiff below to see to it that his judgment was correctly entered of record.
Certiorari awarded and cause continued.
