Dorsey v. Peirce ( 1840 )

Mr. Justice Tuenek

delivered the opinion of the court:

Various errors are assigned in the record and proceedings in the court below.

There is no writ, declaration or pleadings set forth in the record.

There is a writ of error coram nobis, and the petition of Peirce alone, on which it was granted. But there is no citation or notice of that writ served on the plaintiff below. On its return, the judge allowed the sheriff to amend his return on the original writ, and then allowed an amendment of the original judgment to make it correspond with the return. Of these amendments Dorsey complains, and assigns errors in relation thereto.

The court below erred in sustaining a motion to amend the judgment, without notice to the plaintiff below, which according to the statute, should have been given.

The court would have been right in allowing the sheriff to amend his return, if it had been made before judgment, or on the return of the writ. But after the term had passed, the judgment was no longer under the control of that court, and the injured party’s remedy was by a writ of error to the Court of Appeals, if the error was such in reality as the petition, sets forth. But for the want of a full record of the case, we are not informed as to this matter.

The judgment must be reversed.