Graves v. Fulton , 8 Miss. 592 ( 1843 )

Opinion of the court by

Sharkey Ch. J.

The plaintiff sued the defendants in an action of debt; they withdrew the plea and suffered judgment by default, but the clerk entered the judgment for the damages only, leaving out the debt. He however issued execution for the proper amount, and the defendants gave a forthcoming bond, which was forfeited. At a subsequent term the bond was quashed, and then the plaintiff discovering the mistake, applied to the circuit judge in vacation to have the judgment corrected. Notice was given to the defendants of this application; and the judge ordered a correction of the judgment, and at the next succeeding term he set aside the judgment which had, been given in vacation, thus leaving the judgment as it was originally entered, and it is this last judgment which the plaintiff seeks to reverse.

The defendants in term time moved to set aside the vacation judgment for the following reasons, to wit: 1. The amendment was not made within the time limited by law; 2. The amendment was contrary to law; 3. That the amendment was made on the day the parties were notified to attend, without giving them an opportunity of contesting the same, although they were present.

None of these reasons are sufficient to support the - judgment setting aside the proceedings in vacation. The law does not fix a limitation. The judge is authorized to amend in vacation, by correcting any mistake, where such mistake is made manifest from the papers in the cause. In this instance the papers abundantly show the propriety of the amendment. The writ and the declaration both describe a writing obligatory for twenty-seven hundred and eighty-four dollars. Indeed the writing obligatory is set out in the record. The defendants were served with process, and appeared and pleaded. They afterwards withdrew their plea and suffered a default. Then it is clear the plaintiff was entitled to a judgment for the debt as well as the damages, or he was not entitled to judgment at all. The record presents precisely such a case as the statute was inténded to remedy. The plaintiff has a judgment for only three hundred and forty-four dollars, the amount of damages, or interest, but no judgment for the principal, when no defence whatever was made to the action. As to the want of an opportunity to contest the amendment, that is a reason which is not very intelligible. They admit they were present, and the law presumes then that they were heard. But the plaintiff urges want of notice of the motion to set aside the vacation proceedings, as a reason for reversing. The record does not even show that the motion was entered on the docket or any. other notice, and this ground alone Would be sufficient.

Judgment reversed and cause remanded.