Norris v. Cottrell , 20 Ala. 304 ( 1852 )

CHILTON, J.

— This bill, in my opinion, was properly dismissed. The ground of equity asserted by it is, that the clerk in computing the amount of the note made a mistake, computing it at too small a sum, and that the judge entered up judgment for the sum thus ascertained. If chancery has jurisdiction to correct this alleged mistake, it seems to me there would be no stopping point for such a jurisdiction. If the mistake of the clerk is a ground of equity, the mistake of the jury or of the judge, by parity of reasoning, is equally so. The party is as much bound to be present and superintend, either by himself or his counsel, the calculation of the clerk and entry of the judgment for the proper amount, as he is to attend to the verdict of the jury and the judgment thereon rendered. In either case, if an error is committed, he has his remedy: in the first, by moving to correct the judgment; in the second, by asking for a new trial. If, however, he waits until either remedy at law is taken away, he has no right to come into chancery. It was his duty to have been in court, and protect his interest; and failing to do this, it is impossible, it seems to me, to say that he has been guilty of no laches.

It is said, it was the duty of the clerk to make a correct calculation, and if he fail to do so, the party who had a right to repose on his act should not be prejudiced. The same may be said of the act of the jury or of the judge, and upon the same principle, if either commit an error, or mistake, the party may come into equity for relief. But the constant rule of decision has been, to deny relief in the nature of a new trial at law. The party should have sought the new trial in the law court, and having allowed the court to pass without doing so, he is remediless.

The Chief Justice concurs with me in this opinion.