Moody v. Grant , 41 Miss. 565 ( 1867 )

Ellktt, J.,

delivered the opinion of the court.

Judgment was entered in December, 1865, in the court below, in favor of A. G. Grant against E. Moody. In December, 1866, Moody entered a motion in the same court, to vacate and set aside the said judgment, on the ground that the plaintiff had died before the term when the judgment was rendered. At the same time, G. "W. Grant, executor of A. G. Grant, made a motion to enter an order of revival of the cause in his name, as executor, as made on the 6th of December, 1865, nuno pro tu/nc. On the hearing of the motions, the death of A. G. Grant was admitted, and it was proved by the testimony of the attorney that at December term, 1865, he suggested the death of A. G. Grant, and took an order of revivor in the name of G. W. Grant, as executor; and that he handed the clerk a written memorandum of the entry to be made in the minutes, which memorandum the clerk marked filed, and placed among the papers, but failed to enter the order in the minutes. The court overruled the motion of Moody, and sustained the motion of Grant, and directed the revivor of the suit to be entered, nunc pro tunc.

It is well settled that a record cannot be amended after the term, on parol proof of what was done.' There must be something in the record to amend by..' The memorandum of the attorney, filed with the papers, is no part of the record, and amounts to no more than parol proof. Russell v. McDougall, 3 S. & M. 234; Boon v. Boon, 8 S. & M. 318.

The judgment will be reversed, and a judgment entered here overruling the motion of the defendant in error, and sustaining the motion of Moody to vacate and set aside the judgment of the court below, and remanding the cause for further proceedings.