| Conn. | Oct 15, 1856
Several objections have been made against the decisions in the court below.
In the first place it is said, that the court had no power to make the correction prayed for, and therefore ought to have dismissed the petition as insufficient.
The county and superior courts, in this state, both by statute and the common law, have long exercised the power of setting aside a judgment and granting a new trial, for reasonable cause, not only upon motion made, at the term when the judgment was rendered, but upon a petition brought to any subsequent term, within the three years limited by the statute.
And it would seem to be as reasonable for a court to correct a record, not made in conformity with the judgment, as to set aside that judgment, when justice to the parties required that it should be done. The power is necessary to prevent a perversion of justice.
If the error of the clerk in making up the record, is discovered at the term of the court in which the judgment is
But if the mistake is not discovered until after the term is ended, and the parties have gone out of court, the correction ought not to be made, unless upon a formal petition setting forth the mistake, and the alteration prayed for, and after due notice has been given to the adverse party, to appear and show reasons why the relief should not be granted. All this was done in the present case, and hence no objection arises from want of due notice to the defendants, who appeared and were fully heard in the court below.
Again it is said, the petition is bad, as it prays for relief in a court of law, and also in a court of chancery; that the correction of the record of a judgment in a court of law, can only be made by that court, while a court of chancery alone has power to grant an injunction. There would be much force in this objection, were the two jurisdictions, as in England, and in some of the other states, vested in distinct tribunals.
But in this state the superior court administers relief, both in law and in equity. The form of the petition in this case, whether considered as an application for the correction of a record, or for an injunction, is substantially the same as it would be, if it contained a prayer for relief in one only of those particulars.. And when we consider that the design of the suit is in effect to accomplish but one object, the correction of the record, and the prevention of an improper use of it, we see no necessity for requiring two suits to be brought, when entire justice can be done in one.
But, however this may be, the principle has been virtually settled by this court, in the recent case of Carrington v. Holibard, 17 Conn. R., 530, and S. C., 19 Conn. R., 84. In that case, it was holden, that in a petition for a new trial in an action at law, the petitioner might pray for an injunction against enforcing the payment of the judgment that had been rendered. We see no reason for disturbing the doctrine recognized in that case.
In the next place, it is said that parol evidence was inad
Parol evidence is not admissible to vary the terms of a deed, but yet, in an application in chancery to correct a mistake in it, it is the constant practice to admit parol evidence to prove the mistake, to show what the agreement of the parties was, and what were the instructions given to the scrivener who drew it.
It is often the case, that the court announces in open court, the decision which it has made, without furnishing the clerk with any writing upon the subject. Were the latter to make a mistake in entering up the judgment, the injured party would be remediless, unless the mistake could be corrected upon the testimony of the judge who made the decision, and the counsel and others who were present and heard it announced.
Again it is said that the letter of the late Chief Justice, being in writing, ought to have had controlling influence in the decision of the case. But that was not a record which the law required to be kept, but a mere communication from the presiding member of the court, made out of court, to the clerk, informing him of the decision which had been made.
A mistake in that communication, in consequence of which the record was incorrectly made, would be just as injurious to the petitioner as if made by the clerk alone, and would render the record just as liable to correction.
Nor were the. entries made upon the docket books, records, in the proper sense of the term, but mere memoranda, to assist the memory of the clerk, in afterwards drawing up his record.
Whether there was a mistake in the record, was a question of fact for the court below, to be established, as any other fact in a court of justice, by proper evidence. For this purpose the letter of the late Chief Justice, the entries upon the docket books, and the testimony of the witnesses who heard
It is finally said that the decree is erroneous, inasmuch as it orders the petitioner to make a certain endorsement upon his execution. An application for the correction of a mistake in a record is very much like an application for a new trial, resting in some measure in the discretion of the court. And if the court sees that, by granting the prayer of the application, it would give the applicant an undue advantage over his opponent, it may withhold the exercise of its power, unless the applicant will consent to do justice to the opposite party.
The object of the petition, in the present case, was not to set aside a judgment, but merely to correct the record of it. And it seems that, on the trial, it was claimed that a certain sum was included in the judgment, which ought not to have been included. To obviate all difficulty arising from that claim, the petitioner consented to endorse that amount upon his execution. An order to that effect was accordingly made, and the correction decreed.
The petitioner can not and does not complain of this order. No injustice is done to the defendants, as it operates in their favor, and was probably made upon their complaint.
We therefore do not advise a new trial.
In this opinion, the other judges, Storrs and Hinman, concurred.
New trial not to be granted.