95 N.C. 471 | N.C. | 1886
(Leak v. Covington,
Proper pleadings were filed, and an account was taken and stated by the Clerk, from which it appeared that a note for $525, due January 3d 1858, against the plaintiff, W. G. N. Strickland, passed into the hands of the defendant as part of the effects of his intestate — that the latter had never duly accounted for same, and was properly chargeable therewith, and he was so charged in the account.
In rendering the final judgment of distribution, although the said W. G. N. Strickland had not paid and discharged his indebtedness on account of the note mentioned, and he still owed the same, and his indebtedness was much larger than his distributive share, by inadvertence of counsel in preparing the judgment for entry, it was directed that the defendant pay to him his distributive share, $302.82, when it was (472) really intended by the Court that no such judgment as to him should be entered. *401
After the lapse of more than a year next after its entry, the plaintiffs, other than W. G. N. Strickland and the defendant, moved, upon proper notice, before the Clerk of the Court, to correct the error thus existing, by modifying the judgment so as to strike out so much thereof as directed the defendant to pay to the said W. G. N. Strickland, the said sum of $302.82, and thus make it what the Court intended it should be, and what it appeared it ought to be.
The plaintiff, W. G. N. Strickland, contended that the judgment could not be thus corrected. The clerk, however, allowed the motion and made the correction, and W. G. N. Strickland appealed to the Judge at Chambers.
At Chambers, the Judge filed a brief opinion, whereof the following is a copy, and gave judgment reversing the order and correction made by the clerk, from which the plaintiffs other than W. G. N. Strickland and the defendant, appealed to this Court:
"The Court is of opinion that the judgment entered in the Probate Court on the 7th October, 1884, between the same parties, was final.
"That the relief sought by these proceedings is provided for in section 274 of The Code, and that not having been begun within a year after the entry of said judgment, it is now too late. Any other relief save that provided in the section named, must be sought in an independent action, and not by motion in the cause as is adopted here. Ruffin v. Harrison, 91 at 399." It seems to us clear, that the Judge misapprehended the nature and purpose of the motion. It was not a motion to "relieve a party from a judgment, order (473) or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect," nor to correct an erroneous judgment properly so denominated, nor to correct or set aside a judgment for irregularity in the course of the action, commonly called an irregular judgment, but to correct a mistake of the Court made by its inadvertence, occasioned by the inadvertence of counsel in preparing the judgment for entry. There was no mistake of law or fact in the proceedings leading to and upon which it rested — the grounds of it had been properly settled as to the law and fact, as appeared in and by the record — there was simply a mistake in the entry — the Court did not enter the judgment it intended to enter, nor that authorized by what appeared in the record. *402
Such errors may be corrected at any time, and after a long while, upon motion, or the Court may and ought to correct them ex mero motu as soon as it sees them. This is necessary and proper, to the end the record shall speak the truth. The object is to make the record show what the Court, in fact, resolved, intended, and in contemplation of law, did.
This is no wise conflicts with the case of Ruffin v. Harrison,
There is error. The judgment of the Judge must be reversed, with instructions to affirm that of the Clerk. To that end, let this (474) opinion be certified to the Superior Court according to law. It is so ordered.
Error. Reversed.
Cited: Cook v. Moore,