Doe Ex Dem Barnard v. Etheridge , 15 N.C. 295 ( 1833 )

The material facts of this case will be found fully stated in the opinion of the Court. The plaintiff on the trial of this ejectment, offered in evidence to support the title of his lessor a deed from the sheriff, purporting to convey the land in controversy, an execution purporting to give the sheriff an authority to sell it, and a judgment on which it was alleged this execution had issued. The defendant objected to the testimony offered, that the judgment did not warrant the execution. The Judge sustained this objection and nonsuited the plaintiff. The plaintiff moved to set aside the nonsuit. This motion was refused and the plaintiff appealed.

The execution commands the sheriff, of the goods and chattels, lands and tenements of James P. Hughes and wife, to make a sum of money which was recently recovered by Willoughby D. Barnard, "administrator of Dennis Dozier, deceased," and it is insisted that the judgment was rendered in favor of the said Willoughby D. Barnard, personally. The record is exceedingly imperfect and informal. It sets forth a writ issued in behalf of Willoughby D. Barnard, administrator of Dennis Dozier, the pleas of the defendants, the issues joined and "leave given on motion of the plaintiff to amend the writ by striking out ``administrator.'" It does not state that the amendment was made, but sets forth a verdict upon the issues joined, in favor of the plaintiff, gives no formal judgment and shows (296) the execution such as is above recited, issued upon the judgment in that suit and returned by the sheriff executed. It has been long settled in this State, that upon a verdict which connected with the pleadings, authorizes a judgment and where no judgment is formally entered, we are bound to intend such a judgment as ought to have been rendered. The defendant contends that leave having been given to the plaintiff in that suit to amend his writ, the writ must be considered as though it had then been amended accordingly; and that upon a writ so amended, and on the issues and verdict, the judgment ought to have been rendered in behalf of Barnard personally. Ufford v. Lucas,9 N.C. 214, is relied on as an authority in support of this argument. In that case, a writ had been sued out in detinue, and pending the action leave had been given to amend the writ so as to suit it to an action in trover. The amendment was not actually made on the record, but the action proceeded as an action of trover, and the verdict and judgment were in trover. After an appeal to this Court, the defendant endeavored to reverse the judgment because of a variance between that and the writ, but the Court refused to reverse for this cause, and declared that the parties having agreed that the writ might be amended to trover, and all the proceedings thenceforth up to the rendition of the judgment being in trover, the appellate court would consider the amendment made as fully as though it had been entered of record. But in the record which we are now considering there is nothing from which it can be seen that the proceeding subsequent to the leave given, did correspond with the new form which the plaintiff was permitted to give to his writ. It does not appear of record, nor can we infer it that the plaintiff availed himself of this leave. We cannot pronounce therefore that such an amendment was made nor can we intend any other judgment than that which consists with the writ, the pleadings and the verdict, and which consists also with the execution that issued thereon.

(297) It is not to be inferred from what has been said that if the judgment could have been construed or intended as one in favor of Barnard personally, the misprision of the clerk in inserting the words "administrator of D. Dozier" in the execution, could cause that execution to be regarded as a nullity. The execution was returned to the Court and made a part of the record of the suit in which the judgment was rendered. It is clear we think that the misprision could and would have been corrected by the proper Court as a matter of course; and if so we are not prepared to decide that such a discrepancy between the judgment and execution can be objected to by third persons as actually invalidating the execution.

It is the opinion of the Court that the judgment of nonsuit be reversed and a new trial awarded.

PER CURIAM. Judgment reversed.

Cited: Harper v. Miller, 26 N.C. 36; Brooks v. Ratcliffe, 33 N.C. 325;Peterson v. Vann, 83 N.C. 121; Walton v. Pearson, 85 N.C. 50.