Smith v. Mullins

60 Ky. 182 | Ky. Ct. App. | 1860

CHIEF JUSTICE STITES

delivered the opikion of the codrt:

In May, 1856, Mullins, sued Smith upon two notes, setting up both in the same petition, but in distinct paragraphs. Smith appeared and answered, but subsequently withdrew his answer, and permitted judgment to go. The clerk, however, in making the order of judgment, failed to notice the smaller note, and only entered judgment for the amount of the larger one— reciting in the judgment that that was the amount claimed in the petition.

Afterwards, Mullins withdrew the note thus omitted without leave of court, and assigned it to Fennessy, who sued Smith thereon in the quarterly court, and obtained judgment. From that judgment Smith appealed to the circuit court, and there relied on the judgment of 1856 as á bar to Fennessy’s action. The circuit court held the defense good, and dismissed Fennessy with costs.

After this — in October 1859 — Mullins took a rule against Smith to show cause why the judgment of May, 1856, should not be so Ncorrected as to embrace the small note.

To this rule Smith responded, resisting the correction asked for ; relied upon the lapse of time ; denied that Mullins had any interest in the matter in dispute, having assigned the note to Fennessy, and insisted that the judgment wasbeyond the power of the court — more than three terms having passed since its rendition.

The response was objected to as insufficient, and so held by the court below; and the rule having been made absolute, and the correction made, Smith has brought the case up.

It is evident that the failure of the clerk to insert the amount of the note in question in the judgment of May, 1856, was a clerical misprision, amendable by the record itself. (2 Mar., 374; 13 B. Mon., 332; 16 B. Mon., 334.)

And it is also clear that the lapse of time was no bar to the amendment.

Section 579 of the Civil Code declares that the court in which a final judgment or order has been rendered shall have power, after the expiration of the term, to vacate or modify such judgment or order upon eight distinct grounds enumerated in sub-divisions of said section from 1 to 8 inclusive. Among them are misprisions of the clerk, named in sub-division 3.

Section 580 authorizes the correction of such misprisions, upon motion, after reasonable notice to the adverse party, and declares that such motions — when made to vacate a judgment rendered upon a premature trial — can only be made within the first three days of the next succeeding term, but fails to impose any limitation whatever upon motions to correct clerical misprisions of any other class. Nor is there elsewhere in the Code of Practice any restriction or limitation of time in reference to the correction of clerical misprisions, except the class above referred to.

The limitations contained in sections 371-373 do not, as is supposed, apply to motions for the correction of misprisions— they relate only to motions for new trials as provided for in section 369.

The objection that Muhins was not interested in the judgment sought to be corrected was equally unavailing. The response shows not only that he was the plaintiff therein, but also that the note which had been attempted to be assigned to Fennessy was merged in the judgment; and moreover, it is obvious from the allegations of the response, that Mullins was interested in the collection of the note as assignor, if the note could be regarded as having any existence. Fennessy had been defeated in its collection by the defense set up by Smith, and if Mullins stood in the attitude of assignor upon a note,he was not only liable to Fennessy for the consideration of the assignment, but had the right to look to his judgment against Smith for protection.

In no aspect of the case did the response present any obstacle to the correction sought for, and the circuit court very properly made the rule absolute, and allowed the correction asked for.

Judgment affirmed.