Poole v. McLeod ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

This was an action for assumpsit, brought by the defendant in error, against the plaintiff in error and John G. Creigher, executor of Thomas L. Sterling, deceased. At the December term, 1840, of the court, the suit was discontinued as to the latter, and a judgment, by default, entered against Poole ; but by some mistake, the clerk, in entering the judgment, made his entry in blank, and specified no sum in it. At the May term, 1842, of the court, the plaintiff, without any farther notice to the parties, had another judgment by default taken against Pool, and entered up the sum of two hundred and twenty-nine dollars and fifty cents, and a pluries writ issued against the executor of Sterling.

It does not admit of a moment’s question, that these latter proceedings were all erroneous, if not wholly void. The surviving maker of the note sued on, could not be sued jointly with the executor of the one who had died; it was error, therefore, to issue the pluries writ against him. H. & H. 595. After the term had passed, at which the original judgment was rendered, there was no way to correct it but that prescribed by the statute on the subject. H. & H. c. 18. The notice there required does not appear to have been given. The last judgment will therefore be reversed, and the cause remanded. But this opinion, it may be added to prevent misconception, is not meant to interfere with the right of the party, to proceed in the proper way to have his first judgment corrected and enforced.

Judgment reversed.