Scarborough v. Merchants & Farmers Bank , 131 Ga. 590 ( 1908 )

Evans, P. J.

(After stating the facts.)

Much liberality is allowed in the amendment of judgments. The code provides that a judgment may be amended, by order of the court, in conformity to the verdict upon which it is predicated, even after execution issues. Civil Code, §5113. The rule has always been recognized in this State that a judgment may be amended to conform to the verdict and pleadings at a subsequent term. Dennis v. Colley, 112 Ga. 114 (37 S. E. 119). In the case of Alexander v. Troutman, 1 Ga. 469, it was held that if in the entering up of a judgment on a note bearing interest from date, upon a confession of judgment, the interest in the judgment is computed only from maturity, the judgment may be amended at a subsequent term so as to include the interest on the note from its date. In Bell v. Bowdoin, 109 Ga. 209 (34 S. E. 339), a judgment was rendered by a justice of the peace against the defendant, for principal, interest, and costs, and this court held that the justice could amend this judgment at a subsequent term by inserting therein the several amounts which the pleadings showed to he due. But the judgment must be amended by an inspection of the record, including the pleadings and verdict, without resort to extraneous proof. Dixon v. Mason, 68 Ga. 478.

Let us apply this principle to the facts of the present case. The defendant had filed neither plea nor traverse; the plaintiff filed his declaration in attachment at the first term, and notice thereof was given the defendant, and a verdict was rendered for the amount declared on. Under the pleadings and verdict the plaintiff was' entitled to a judgment in personam, and also in rem, upon the property on which the attachment was levied. Civil Code, §4575. As only a judgment in personam was entered, the^ plaintiff was entitled to amend his judgment nunc pro tunc so as to include a judgment in rem. In an attachment case, where no plea had been filed, an unauthorized judgment in personam was allowed to b.e amended at a subsequent term into a judgment in rem upon the property on which the attachment was levied. Mahone v. Perkinson, 35 Ga. 207.

The amendment was allowed on the plaintiff’s ex parte motion, and the defendant insists that the amendment is void because he liad no notice of the proceeding. The general rule is well established that a judgment can not be amended, after the term at which it was rendered, upon an ex parte application. Due and proper notice should be given the opposite party so as to give him an opportunity to resist the proposed amendment. Nevertheless, if the amendment is to be based upon matter of record, and the judgment as amended follows as a matter of course, the necessity of giving notice to the adverse party is not so evident. 1 Black on Judgments, §164. In the case before us the defendant could not file a plea contesting the amount of the judgment, because he is concluded by the final judgment in personam. Civil Code, §4558. The statute requires a traverse of the grounds of the attachment, to be filed at the return term of the attachment, and does not provide for a traverse at a subsequent term. Civil Code, §4560; Banks v. Hunt, 70 Ga. 741. In his motion to vacate the amendment to the judgment, the defendant does not allege that any fraud was practiced on him; or that he was prevented by any act of the plaintiff from seasonably filing a traverse of the ground of the attachment. His right to a vacation of the amendment to the judgment is predicated solely upon the ground that it was made at a term subsequent to the rendition of the original judgment, and without notice to him. Under the circumstances of this case it would be idle to set aside the amendment to the judgment because of lack of notice, when the defendant omits to show that a different judgment would be possible- had he been notified of the proposed amendment.

Judgment affirmed.

All the Justices concur.