Robb v. Bostwick, 5 Ill. 114, 4 Scam. 114 (1842)

Dec. 1842 · Illinois Supreme Court

5 Ill. 114, 4 Scam. 114

Samuel Robb v. Frances P. Bostwick, Executrix of Manoah Bostwick, deceased.

Appeal from Morgan.

1. Practice — entry nunc pro tunc. The record of a cause showed that the summons was returnable to the March term, 1839, and that at that term the defendant appeared and filed several pleas to the action, upon which issues were -taken, and the cause continued. At the succeeding June term no order was made in the cause. At the next November term the defendant filed a plea of non assumpsit; and on a subsequent day of the same term a judgment was entered, reciting that it appeared from the minutes of the judge, that at the preceding term the defendant had withdrawn his pleas, and judgment was given for the plaintiff; and the clerk having omitted to enter the same on the record, he was therefore ordered to.enter the judgment as of the last March term, which was objected to by the defendant: Held, that the judgment was erroneous, and must be reversed: Held, also, that the court had power, at the November term, to enter a judgment for the plaintiff; and that the plea of the defendant, being filed without leave, interposed no obstacle to the exercise of this power, and should have been stricken from the files, ^(a)

2. Sa.me — directions to court below. In this case the cause was remanded, with directions to enter a judgment at the next term.

The proceedings in this cause, in the court below, were had before the Hon. William Thomas.

J. J. Hardin, for the appellant,

cited 1 Marshall 464 ; Breese 43, 88 ; 1 Scam. 387 ; 2 Scam. 186 ; 6 Johns. 286 ; Hardin 410; Tomlin’s Law-Diet. 290; 2 Lili. Ent. 103 ; .3 Levinz 430 ; Ram. on Judgt. 2 ; 3 Blac. Com. 395, 406 ; 1 Paine and Duer’s Pract. 601; 2 Tidd’s Pract. 932.

D. M. Woodson and C. D. Hodges, for the appellee,

relied upon the following points and authorities: First. The court had the power, at the November term, 1839, to have reversed the judgment which had been given at the previous term. Guykow-ski v. the People, 1 Scam. 477; Chichester v. Cande, 3 Cowen 39, and cases cited, Vail v. Smith, 4 Cowen 71; Close v. Gilles-pey, 3 Johns. 525.

Second. The question as to the evidence on which the court might rightfully act, or as to the sufficiency of the evidence, upon which it did act, in entering the judgment ñunc pro tunc, is not before this court, no exception having been taken ; the party might have admitted, in court, all the facts necessary to justify the action of the court, and still object to the action upon those facts.

Third. After the party had withdrawn his pleas, and permitted judgment to be ordered, he was out of court; he could not, at the same, or any subsequent term of the court, object to the recording of the judgment. Foster v. Filley, 1 Scam. 256 ; Morton v. Baily, 1 Scam. 213; Teal v. Russell, 2 Scam. 319.

Fourth. The party had no right to file a plea at the subsequent term of the court, because it was in violation of his agreement at the previous term; and the plaintiff was [*116] not bound to take notice of any plea so filed.

(a) Cases Citing Text. Amendment of judgment does not affect intervening rights acquired between date of judgment and date of amendment. Shirley v. Phillips, 17 Ill. 471, 473.

. Amendment of record of judgment should not be made years after its rendi* tion from mere recollection of witnesses. Coughran v. Gutchens, 18 Ill. 390, 391.

After judgment term, power of court to amend record is confined to correcting errors of its officers, and such errors may be corrected at any time upon 'notice to parties in interest and saving all intervening rights, so as to make record conform to fact. Dunham v. South Park Com'rs. 87 Ill. 185, 188.

Wilson, Chief Justice,

delivered the opinion of the court: The appellee brought an action of assumpsit, as assignee of Robert Houston, upon a promissory note made by the appellant. The summons was issued returnable to the March term, 1839, of the Morgan circuit court. At that term the appellant appeared and filed several pleas to the action, upon which issues were joined, and the cause was continued generally. At the June term no order appears to have been made. At the November term the appellant’s counsel filed a plea of non assumpsit, and on a subsequent day of the term a judgment was entered, reciting, that it appeared from the minutes of the judge, that at the preceding term, the defendant had withdrawn his pleas, and judgment was given for the plaintiff; and the clerk having omitted to enter the same on the record, he was therefore ordered to enter the judgment as of the last March term, which was objected to by the defendant’s counsel. The judgment thus entered is assigned for error.

The question as to the power of the court to enter a judgment mine pro tuno has been raised and discussed at the bar; but granting to the authority of the court, the utmost latitude that can be claimed, it will not warrant the judgment entered in this case. At the November term of the court, judgment is entered as of the March term, without noticing the intervening June term, at which the judgmént was doubtless intended to have been entered. This was erroneous. The record shows that the pleas of the defendant below were withdrawn at the June term, and it is inferrible that a judgment was then ordered to be entered upon the record, but, from some cause, was omitted to be entered by the clerk. Without enquiring, however, as to the intention, or power of the court, in reference to the entering of a judgment at the June term, there can be no doubt as to the authority of the court to enter a judgment at the November term. The plea of the defendant interposed no obstacle to the exercise of this authority. It was filed by the defendant, without having previously obtained leave of the court for that purpose, and should have been stricken from the files of the court; after which there could have been no objection to rendering a judg'ment at that term. As the judgment which was entered was an jimproper one, it must be reversed with costs, and the cause remanded to the Morgan circuit court, with directions to enter a judgment at the next term of the court.

Judgment reversed.