19 N.H. 109 | Superior Court of New Hampshire | 1848
There is no doubt of the power of the court to make amendments of its records whenever there is any error, and something on file by which the amendments may be made. The subject was much discussed in a ease in this court, recently decided.
The original action there was debt upon a bond, in a large penal sum, conditioned for the payment of a smaller sum by several instalments. Upon the back of the writ was entered a minute of a judgment for the plaintiff for the penalty and costs, as it should be. Upon the clerk’s docket was entered a minute of a judgment for the first instalment, which was all that was then due, with costs, and execution ■issued accordingly. The execution, being for all that was due, was right, but the judgment should have been for the
But all amendments are in the discretion of the court, and are not to be made if injustice would thereby be done to any one. And the defendant says that this amendment should not be allowed, because the original writ was served by an attachment of his goods, and the leaving a summons at his alleged residence in this State; and he now offers to prove that, at that time, he had no residence in New Hampshire, and had no notice of the pendency of the suit or of the rendition of the judgment until the service of the writ in the action now pending, founded upon that judgment. The plaintiff objects to the reception of such evidence because it contradicts the officer’s return. But we do not so consider it. The defendant does not propose to prove that no attachment was made, or no summons left, but to show his absence from the State at the time, and that he, in fact, then had no residence within the State. We think such evidence cannot be regarded as contradicting the officer’s return. But if it did, there are many cases in which returns of officers may be contradicted. They cannot be contradicted so as to defeat any right or title acquired under the return, and this is believed to be the extent of the rule. But here the plaintiff sets up no right or title under this return. He seeks to acquire a right by the amendment which he asks, and by asking that, he impliedly admits that, without
We are, therefore, of the opinion that the proposed evidence may be received. What its effect will be is a different matter. As there is an obvious clerical error in the proceedings, we think the amendment cannot be resisted on a mere technical objection, not affecting the substantial justice of the case. The plaintiff, relying on his judgment, may have suffered his right of action on the note to be barred by the statute of limitations. He is not responsible for the error of the clerk, and does not appear even to have known it. Now if this is a subsisting debt, justly due from the defendant, and the plaintiff cannot produce a record of his judgment as it should be, he would be in danger of losing his debt from the error of the officer of the court. We think, therefore, if the defendant would resist the motion to amend, he must furnish evidence to satisfy the court that the plaintiff’s claim against him was not a just claim ; and that if he had had notice of the original suit, he could have defended against it successfully. Otherwise the manifest error of the clerk should be corrected, and the parties left to their legal rights and remedies.
As there has been no extended or formal record made of the original judgment, that is now to be made up. The minutes upon the writs, which correspond with the writs themselves, are inconsistent with the entries upon the docket ; but if the latter be corrected, all repugnancy is removed, and no occasion will exist for any direction to the clerk as to the making up of the record.
