10 Ga. 180 | Ga. | 1851
By the Court.
delivering the opinion.
Did the Court err in refusing permission to the defendant in ca. sa. to prove by parol, a judgment of non-suit in his favor, after the lapse of ten years, and have the same entered, nunc pro tunc ?
So in Mssissippi, it has been held, that the notes made by the Judge on the docket, constituted no part of the record, and were not evidence for any purpose, not even to authorize an amendment or correction to be made by the Judge himself, of his own proceedings ; that they were even more objectionable than parol evidence. Burney vs. Bryt, 1 How. Rep. 39. Orne, appellant, vs. Sullivan, 3 How. R. 161.
On the other hand, in The State vs. King, (5 Ired. Rep. 203,) Judge Griffin said, that the Supreme Court of North Carolina had so frequently had occasion to declare that the power resides in every Court to amend the entry on the minutes, or the record of its orders and judgments, nunc pro tunc, that he supposed the point would be made no more, and in Gallenary vs. McKeithen,
And between these extremes, there is every imaginable variety of adjudication.
Under these circumstances, we are unable to prescribe any definite rule of universal application, even in England, where it is stated that no amendments are allowed to be made in the process, pleadings and proceedings, only where the cause stood in paper, and before the judgment is given and enrolled. We meet, unquestionably, with some striking exceptions to the doctrine.
In Cogan vs. Elden et al. (1 Burr. 583,) Lord Mansfield presiding, the verdict was amended from the Judge's notes, and the affidavits of the Jurors who rendered it. Judgment against an executor de bonis propriis, wms amended by making it de bonis test, et si. non, &c. after writ of error brought mil tiel record pleaded, and argument in the Exchequer Chamber. Short vs. Coffin, Ex. 5. Burr. 2730. Dougl. 116. Postea amended by the Judge's notes after final judgment and lapse of two years. 3 Durnf. & East, 749. And for numerous cases of amendment of postea verdict, judgment, &c. by the Judge's notes, after error and joinder, see 2 Sellon's Pr. 408, ch. 9, §8, letter d.
And Mr. Tidd, in his excellent work on Practice, has laid this down on the clear doctrine of the Courts, in all cases of ordinary suits, (excluding fines and recoveries,) that judgments and records are allowed to be amended — 1st, where the case is within some Statute — or 2d, where there is something to amend by, “that is, where there is some memorial paper or other minute of the transactions in the case, from -which, what actually took place in the prior proceedings, can be clearly ascertained and known.” 1 Tidd's Pr. (9th ed. 1828,) 711, 712.