Flournoy v. Childress , 1 Minor 93 ( 1822 )

Opinion delivered by

Judge Saffold.

Admitting that the demurrer was not sustainable, it should have been disposed of by a decision of the Court below. It could not properly be treated as a nullity. There was Error in rendering the judgment as by default. The judgment is for more than the declaration claims. The counsel for the defendants in Error, contends, that it. was competent for the Circuit Court to correct this matter, and that this Court should not take jurisdiction of it. It is true that the entering of the judgment is the ministerial act of the clerk ; but in doing so, he exercises no judicial function. It is the judgment, not of the clerk, but of the Court. If the Circuit Court, on timely application, might have corrected the entry, it has not been done so. It is a well settled principle, that the plaintiff cannot recover more than he claims in his declaration (see Dinsmore against Austill, ante, p. 89). The final judgment for more is a proper subject for appellate jurisdiction. It is the unanimous opinion of the Court that the judgment be reversed, and the cause be remanded.