Mason v. Smith , 1 Stew. 275 ( 1828 )

JUDGE SAFFOLD

delivered the opinion of the 'Court.

The note as described in the declaration, (according to the usual practice,) shews only the amount) which the defendants undertook to pay. The payments or credits entered on the note cannot be ascertained without reference to the endorsement on the writ It has b$en the practice of this Court to refer to such endorsement to sustain, ^a but to refuse to look to it to reverse a judgement on technical of formal exceptions. But in this cj^se, the matter assigned as error goes di ectly to fhe merits. The assignment alleges that a mistake of several hundred dollars was made in the computation, and in the judgement. Prior to the statute of 1824, “to regulate pleadings at common law,” it was the uniform practice of this Court, in cases like the present, to reverse the judgement and render it here for the correct amount as shewn by the record. By the fifth section of this statute ^b it is enacted that no cause shall be reversed by the Supreme Court for any clerical error or misprision in calculation of interest, or other mistake of a clerk, unless the Court of original jurisdiction where the same was determined, shall upon application, refuse the amendment. But the third section of the same statute enacts, “ that no cause shall hereafter be reversed by the Supreme Court, or any Circuit Court, for any miscalculation of interest, or other clerical misprision in entering up judgement, so as to give costs to the plaintiff in error, but in al! such cases, the Supreme Court may order the judgement to be amended at the costs of the plaintiffs in error.”

Thus it appears, that in cases like the present, this Court may not reverse at the defendants’ costs, but may order the judgement to be amended at the costs ol the plaintiff in error. If the mistake here had been against the defendants, an execution might have had its effect before a session of the Circuit Court, at which a motion to amend could be heard. Then the remedy, by resorting to the Supreme Court, (as given by this section of the statute,) was not unnecessary or useless. As the amendment must be at the costs of the plaintiffs, no injury can be done to the defendant, by applying for the remedy here,'rather than in the Circuit Court. We entertain no doubt that the statute authorizes it, or that is a proper case for it.

Let the judgement be corrected at the costs of the plaintiff.

Judge White having been of counsel, gave no opinion.

Judgement was accordingly entered, that the judgement of the Circuit Court be annulled, and that the defendants recover against the plaintiff the costs accruing in this Court; and the Court here rendering such judgement as should have been rendered by the Court below, further consider, that the plaintiff recover against the defendants $4181 68, (the sum for which judgement should have been rendered by the Court below at their September term, 1823, being the balance of principal and interest, which appears then to have been due on the promissory note in the declaration mentioned,) and also bis costs by him about his suit in said Circuit Court expended.

a Davis vs. Chester, Minor's Ala R. 385.

b JActsm<f,p.i7.