18 Ala. 655 | Ala. | 1851
James H. Shorter, in his life-time, on the 2Sth day of January 1840, commenced bis action of assumpsit, in the Circuit Court of Macon county, against Henry Mims, Rene Fitzpatrick, Edward F. Mahone and Hamilton Duke. The action was brought on a promissory note made by Henry
Subsequently to the judgment, flenry Mims filed his bill in chancery against Shorter, praying an injunction and relief against the judgments, including the one for $6069 35. The register of the Court of Chancery, on the 22d April 1842, granted the'injuction, to be issued upon the' compainant’s entering into bond and security. On the same day a bond was executed by Mims and certain persons as his sureties, binding themselves to Shorter in the penalty of $12,600. In the condition it is recited that Shorter had obtained two judgments against Mims, one for $438 94 and $17 costs, and the other for $6069 35 and $17 87 costs, against Henry Mims, Rene Fitzpatrick, John R. Ma-hone and Hamilton Duke; also, that Mims had that day filed his bill and obtained an order that “an injunction supersedeas” should issue restraining farther proceedings “on said judgment and execution” until further order of the Court of Chancery.
2. The defendant in the motion to quash offered to prove that the judgment for $6069 3-5 was confessed not by Edward F. Mahone, but by John R. Mahone, among others. This evidence was rejected by the court. If there is any mode of correcting such a mistake in a judgment, it must be done in a direct proceeding. We think the evidence offered was properly rejected on the motion to quash.
3. While the motion to quash was under consideration, the defendant in the motion, by consent of parties, submitted a cross motion to amend the executions :,so as to make them conform to the judgment for $6069 35, as described in the above recited injunction bond.” But the court quashed the executions, nevertheless. If the motion had been to amend the executions, so as to conform to the original judgment, although that would have been to amend by striking out some of the parties in the execution, it perhaps might have been sustained by some of the English cases and some of our own, which go very far. But the motion was very different; it was to make them conform to the judgment, as the same is described in the injunction bond— thus they would have been made to conform to the bond, but to vary from the judgment, in respect of one of the parties. This motion was properly overruled. And whether the executions were amendable or not, so as to agree with the original judgment, it does not lie upon the court to amend for a party’s benefit, con*
The judgment is affirmed.