Herdic v. Woodward

Judgment was entered in the Supreme Court, March 30th 1874.

Per Curiam.

The amendment from debt to covenant in this case was made while the action was pending. It is in the power of the court to set aside a judgment in default of a plea or of an affidavit, at the instance of the plaintiff, who finds he has been proceeding in mistake. When the judgment was taken off, the action stood as before judgment was entered, and the. right of' amendment attached.

The effect of the affidavit depends on the meaning of the word “ due,” where it says, “the balance of purchase-money and interest due.” Connecting this sentence with what immediately follows, decreeing this balance ($6204.53) to be paid on or before the 1st day of April 1871, it is obvious the word “'due” refers to and means the balance or sum falling due or payable on and before the 1st of April 1871, and not the whole sum owing upon the entire contract. This excludes the subsequent instalments falling due after April 1871. The action of covenant then, being for the instalment of April 1st 1872, it is obvfous the decree does not include it, and is therefore no bar to the action. Herdic, who was the plaintiff in the bill for specific performance, not having complied with the decree in his favor, by giving his bonds and mortgage for the instalments falling due after April 1st 1871, and taking the deed Woodward filed under the decree, and the decree having made no other provision for these instalments, it is evident Herdic stands in no position to contest the plaintiff’s action of covenant, this being the only means left to him to enforce payment of these instalments.

Judgment affirmed.