Moseley v. Brigham , 12 Tex. 104 ( 1854 )

Lipscomb, J.

The law, under which the amendment was made, is expressed in the following words, i. e.: “When, in the “record of any judgment or decree of any District Court, there “ shall be any mistake, miscalculation or misrecital of -any “ sum or sums of money, or of any name or names, and there “ shall be among the records of the proceedings in the suit in “ which such judgment or decree shall be rendered, any ver- “ diet or instrument of writing whereby such judgment or de. “ cree may be safely amended, it shall be the duty of the Court “ in which such judgment or decree shall be rendered, and the “ Judge thereof in vacation, to amend such judgment or deu cree, thereby, according to the truth and justice of the case; “ provided that the opposite party, his agent or attorney of “record, shall have reasonable notice of the application for “ such amendment, and if the transcript of such judgment or “ decree, at the time of the amendment, or at any time there- “ after, shall be removed to the Supreme Court, it shall be the “ duty of that Court, upon inspection of such amended record, “ to be brought before it by certiorari if need be, to affirm “ such judgment, if there be no other érror apparent in such “ record.” The mistake in the judgment, is in the phraseology employed; it uses the words, “ two twenty-five and 86-100 dollars,” intended doubtless for two hundred and twenty-five and 86-100 dollars; but if taken literally and in the connection used, it would amount to only twenty-seven and 86-100 dollars; if, however, expressed in figures, it would be, as no doubt it was intended, two hundred and twenty-five dollars and 86 cents. The like awkward words are used to express the amount of the principal of the debt, two twelve and 50-100 dollars, when it is evident that two hundred and twelve 50-100 dollars was intended, because that would be the amount after deducting the credit indorsed on the note; and the interest expressed in the judgment, as having accrued, of thirteen dollars and thirty cents, could not have accrued on any other amount. The Clerk, in entering the judgment in this way, seems to have followed the note as a precedent. The figures on the top, left corner of the note, $212 50, indicate the intended amount thereof, but in the body of the note it is written two and twelve dollars and fifty cents. If it had been intended for only fourteen dollars and fifty cents, why the credit of twenty-seven dollars and seventy-two cents, which would be almost double that amount ?

Was the judgment amendable under the statute cited ? We believe that it was; more especially under the circumstances of this case. The petition alleges the note to have been given for the sum of two hundred and twelve dollars and fifty cents; and it also alleges that a credit had been entered for twenty-seven dollars and seventy-two cents. The defendant comes into Court and consents that judgment should be entered against him, with a stay of execution, when, if the note was for fourteen dollars and fifty cents, it was almost twice paid by the credit indorsed. Suppose that a note had been made in this way, “I promise not to pay A. B. one hundred dollars for value received C. D.,” and this note had been sued on as a promise to pay one hundred dollars, and the defendant had come into Court and agreed that judgment might be entered against him, on a stay of execution; could it be doubted that such consent would amount to the acknowledgement that the word not had been inserted by mistake % There can be as little doubt, that the consent to the judgment in this case amounts to an admission that the word hundred had been accidentally omitted in the note. We believe that by a reference to the figures, with the dollar mark on the note, the credit indorsed and the body of the note as written, afford matter to amend by, under the statute we have cited. The judgment is therefore affirmed.

Judgment affirmed.