Ford v. Tinchant & Brother , 49 Ala. 567 ( 1873 )

B. F. SAFFOLD, J.

— The plaintiffs’ amendment of their motion to reinstate a case seems to have been an abandonment of the original motion to have placed on the Circuit Court docket a cause which the clerk had omitted to transcribe from the City Court docket, and the substitution of a new motion to return to the docket a case, withdrawn in consequence of an erroneous judgment rendered in it by mistake, for the purpose of amending that judgment nunc fro tunc. The defendant admits in his bill of exceptions that the summons and complaint in the former belong to the latter case. The questions, therefore, to be determined are, whether or not a judgment nil dicit, against a defendant in his individual character, for one cent damages, can, at a subsequent term, be corrected into a judgment for damages, with a writ of inquiry, from the summons and complaint which charge him individually on an account, if the error was committed through the misdirection of the presiding judge; whether it ought to be allowed if the effect would be the preclusion of the defendant from a trial on the merits ?

Amendments after final judgment are allowed, because, in the particular instance, it appears from the record that the original action of the court must have been what the amendment proposes to make it. For this reason, the amendment is usually antedated, as the right of the party seeking it. ' But it is sometimes refused, or granted with terms, or of the date when allowed, if the application has been unnecessarily delayed, and the other party, or third persons, would be prejudiced. While it cannot be allowed, unless it can be made from matter apparent on the record, the court is not confined exclusively to the record in determining whether to allow it of not, or what amendment to make. Tidd’s Prac. 770, 965, 973, 975, 1026; Moody v. Keener, 9 Port. 252.

Clerical errors, are not those alone which the clerk makes. They include all such, being matters of record, as intervene in the progress of a cause, whether committed by the court or the counsel, to which the judicial sanction or discretion cannot reasonably be said to have been applied. R. C. § 2807 authorizes the amendment of “any clerical error, mistake in the calculation of interest, or other mistake of the clerk,” where there is sufficient matter apparent on the record or entries of the court to amend by ; and section 2812 empowers the court “ to correct any error in fact in the judgment or process, apparent upon the whole record.” The legislature cannot be held to have been so careless of language, as to have used the expressions “ clerical error,” and “ other mistake of the clerk,” in exactly synonymous sense, in view of the liability to mistake in the entries and record of causes; or to have excluded from amendment the manifest oversights and inaccuracies of the counsel, not calculated to mislead, in permitting the correction of “ any error in fact in the process.”

It was a mistake of the clerk to enter the case No. 630 (460) as a suit against Ford, “ executor of the estate of Toole.” When judgment was taken against Ford in No. 628,-as the representative of Toole, and the “ same order as 628 ” was entered at the same time in the two other cases where he appeared to be in the same capacity, it is manifest that the court and the parties were disposing alone of the several cases in which the Toole estate was concerned, and that the entry in 630 (460) was made by the judge through the merest inadvertence, he being misled by the docket. The mistake from inadvertence is made more evident from the fact that the same order was entered in 631 (461), which was a cause between the City of Selma and Bell Norris, represented by entirely different counsel. There has been no trial of the cause No. 630 (460).

Whether the remedy for such a mistake as has been committed be called the correction of a clerical error by virtue of the statutes of amendments, or a writ of error coram vobis, it is within the jurisdiction of the Circuit Court to reinstate the case on the docket, to set aside the judgment purporting to have been rendered, because it was not in fact rendered, and to place the case'in the same situation it was when the judgment was entered. The plaintiffs are not entitled to a judgment for damages, because the defendant has not had an opportunity of defending. Moore v. Easley, 18 Ala. 619; Holford v. Alexander, 12 Ala. 280; Bacon’s Abr. Error, J. 6, K. 2.

The judgment is reversed, and the cause remanded.