Close v. Gillespey , 3 Johns. 526 ( 1808 )

Spencer, J.

delivered the opinion of the court. There can be no doubt that an amendment is proper, and ought to be granted, but whether nunc pro tunc, so as to give a a preference to the plaintiff’s execution, is the question.

In the case of Seaman and others v. Drake,^* this court ordered an amendment to be made nunc pro tunc, in a judgment, after the lapse of several terms, where the clerk who taxed the costs, had neglected to sign the roll, he having regularly docketed the judgment, and this was against bail. It was done on the principle, that the omission proceeded from an officer of the court. So the court of K. B. in England, have permitted amendments, rendered necessary by the mistake of one of their attornies.^† I cannot discover any difference, as to the allowing of an amendment, whether the mistake has happened through the omission of an attorney, or by that of the clerk. Both are equally officers of the court.

In the present case, the judgment having been docketed, Mancius had, in legal intendment, notice of it, and it does not appear that his debt has been contracted since the entry of Close’s judgment. Had error been brought, there might have been more doubt. I cannot perceive that Manciús has any right to avail himself of the irregularity which has intervened. Nor can I perceive that our right to amend, in case of the mistake of one of our officers, is to be controuled by the effect which may be produced in another case. All amendments affect, more or less, third persons.

The Court are of opinion, that the motion ought to be granted.

Rule granted.

* 1 Caines, 9,

† 4 Burr. 2449.