Small v. Douthitt

| Kan. | Mar 15, 1863

By the Court,

Kingman, J.

The petition in this case presents for review six assignments of error on the part of the court below. But the record shows no exceptions to the various rulings of the court involved in the first four' assigned errors, without which this court cannot review them. The party, by not excepting to the various rulings of the court, is deemed to have waived any errors therein.

The fifth assignment of error is that the court erred in computing the interest on the note at the rate of five per cent, per month after maturity, instead of six per cent, per annum.

The note is of the same tenor and effect of the one considered by this court in the case of Dudley vs. Reynolds, and for the reasons therein stated, we think there was no error in the computation of interest.

The sixth error alleged is, that the court ordered a nunc pro tunc entry to be made at the October term, 1861, correcting a judgment rendered at a previous term of the court, on motion.

The original judgment was clearly defective. The judgment is between various parties and is very long, and it is not necessary to copy it. It adjudges that there is due Byler ten hundred and thirty-seven dollars and fifty cents; that judgment is rendered for that amount, but afterwards provides that in default of the payment of said sum of six hundred and one dollars and twenty-five cents, found due aforesaid for the space of six months, then the mortgaged property was to be sold to pay the said sum of six hundred and one dollars and twenty-five cents.

The pleadings would not justify'the court in making the lien loss extensive than the judgment, so that one of the other of these sums was error,, and a proper subjest for correction. The mode pointed out by the code is by motion. (See third Subdivision of § 546, and Kellogg vs. Churchill, 1 West's Law Monthly, 45; Doty vs. Rigour, 9 Ohio St., 526.)

Our code has made very great innovations upon the common law rule of amendments, in allowing judgments to be corrected after the term at which they are rendered, c® motion or by petition.

Motion was the proper proceeding in this case, as it is of a class of errors'pointed out in the third subdivision of section five hundred and forty-six. The only difficulty we have had in the case, is that the amended judgment was formally made nunc pro tunc, instead of being at one term, as a modification of a judgment rendered at a previous term, but as in this case the legal effect and consequences are the same,, and the party-put in the same position, no injustice ®a® possibly be done to him by such proceeding.

The judgment is therefore affirmed, a®)d judgment against plaintiff in error for .the costs in this court.

Bailey, concurring. This cause was argued and submitted at the summer term, 1862, and Cobb, 0. J., did not sit in the ease.