Hood v. Branch of the Bank of the State , 9 Ala. 335 ( 1846 )

COLLIER, C. J.

It may be conceded that a judgment is an entire thing, and if defective, should on error be reversed in toto, although the appellate court may, in a proper case, render it correctly. Yet this rule does not universally apply where the primary court is called on to correct or annul its judgment. If it be rendered in a case of which the court had no jurisdiction, then it would be proper to set aside the judgment, and if none could be rightfully acquired, repudiate the eause. Such was the predicament of the cases of Ex parte Sanford, 5 Ala. Rep. 562, and Ex parte Crenshaw, 15 Peters’ Rep. 119.

We have a statute which permits the suggestion of the defendant’s death to be made, and judgment to be taken against the survivors, where there are more than one, or if a sole defendant, in most cases, a continuance against his representatives. If the death of Douglass had been before judgment, no matter in what form the suit was brought, it might have abated as to him, and a recovery been had against the comakers of the note. If the suggestion of his death has been omitted, either from neglect or ignorance of the fact, what rule of law inhibits the plaintiff from making it subsequent to the judgment, that the judgment may be perfected ?

The judgment against Douglass was a nullity, and it was entirely competent for the court so to declare it, that an execution might regularly issue against the other defendants. Where oné of several parties was regularly before the court for its action, and still continued so, it may be that a judgment as to him cannot be annulled without vacating it as to the other defendants, who do not object that they were not liable to the recovery. But that is not the condition of the case before us. Here Douglass was dead, and his representatives could not be joined with the other defendants, and a judgment be rendered against all of them. We think there is no rule of law which forbids the amendment to be made, so as to make the judgment just such as the state of the parties required. The case cited from Binneij was not the result of the equitable jurisdiction, which courts of law exercise in Pennsylvania. Courts of law, as well as courts of equity, are influenced alike by liberal and enlarged views, in permitting amendments, which are to advance the ends of justice.

The judgment nunc pro tunc consequent upon setting aside the original entry as to Douglass, refers to the first judgment, may be considered as a continuation of, and intended to perfect it; and if more than one execution were to issue upon them at the same time, as distinct judgments, a supersedeas might be awarded. Be this as it may, the entry, which is in form a judgment nunc pro tunc must be treated as a clerical misprision, amendable under the act of 1824, at the costs of the plaintiff in error. And it will therefore be vacated on the terms indicated. In other respects, the judgment of the Circuit Court is affirmed. See Dearing, Sink & Co. v. Smith and Wright, 4 Ala. Rep. 432.]