Brady v. Beason, 28 N.C. 425, 6 Ired. 425 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 425, 6 Ired. 425

CARROL BRADY & AL. vs. ISAAC BEASON.

Where upon a writ of recordari judgment was rendered against the plaintiff, in the recordari, and the clerk entered the judgment against the sureties only for the costs, and the Court at a subsequent term directed that the judgment should be entered nunc pro tunc against the sureties, for the debt as well as the costs. Held, that the Court had the power to do so, if in their discretion they thought it right, and that this Court could not revise such discretionary power.

The case of Gregory v Haughion, 1 Dev. 442, cited and approved.

Appeal from the Superior Court of Law of Moore County, at the Spring Term 1846, his Honor Judge Dick presiding.

The facts of the case are the following:

Beason obtained a judgment against Brady before a justice of the peace, which the latter removed into the Superior Court by recordari; and there the judgment was affirmed. Under the statute, which allows in such a case a summary judgment against them, the Court on the motion of Beason, then ordered judgment to be entered for the debt and costs against the plaintiff in the recordarif and the sureties in the bond given for the prosecution of it; but the judgment was entered by the clerk, as a judgment against the plaintiff for the debt and costs, and against the sureties for the costs only. The mistake having been discovered, Beason moved, at the next term, to have it corrected; and the Court then ordered, that the entry of the preceding term should be corrected and made to read as a judgment against both Brady and the sureties for the debt and costs; and the same was accordingly done. Beason then sued out a fieri facias, in which the name of one of the sureties against whom the judgment was rendered, was omitted. At the return of it the sureties moved to set aside, and to vacate the entry of the judgment, upon the ground that the judgment as it now stood against them was void, by reason of its alteration as before stated. The Court set aside the execution for the variance from the judgment, but refused to vacate the judgment, and the sureties appealed.

Winston, for the plaintiffs.

Strange, for the defendant.

Rufpix, C. J.

The consideration of this Court is confined to the question of power in the Superior Court; for, if it exist, its exercise is within the discretion of the judge, which this Court cannot control. Perhaps it maybe found mischievous, if the judge should lend too ready an ear to such applications, on account of the tendency it might have to encourage inattention, on the part of the counsel and attornies, to settling the proper judgments, according to the right of their claims and to the due entry of them by the clerk, for, as that officer is now chosen, the parties, counsel and the Court, are t'o expect but little assistance from him in the orderly conducting of the business. But those are points for the judges on the circuits exclusively ; for it is impossible, that the proper grounds of decision can be laid before a Court of error, to enable it to revise amendments or other discretionary orders. As to the question of power, there cannot be a doubt. It is but supplying the default of the clerk in not entering the judgment, as it was rendered by the Court; and without such a power, the Court and suitors would be at the mercy of that officer. It was said at the bar, that what was done was a reversal of the judgment of the preceding term. But it is quite the contrary, as the facts are represented in the case sent here, which of course is to be deemed entirely correct. It is not a reversal of the judgment, but an alteration in the original entry of it, conformably to the truth, and so as to make the record shew the judgment,-as in fact the Court gave it. Even if the judgment against the sureties for the debt had been omitted, that is, by the Court, it might, afterwards, have been given and entered nunc pro tunc, since no third person can be injured. It is manifestly just between the parties. Gregory v. Haughton, 4 Dev. 442. But here the Court was not supplying its own omission, but barely protecting itself and the suitor, from the wilful or negligent, and in either case, culpable misprision of the clerk, which is every day’s practice. Instead of being a reversal by one Judge of the judgment of his predecessor, it was doing what was absolutely necessary, to prevent the clerk, a .mere ministerial officer, from virtually reversing the judgment from the manner of entering it. Such acts or omissions of the clerk must of necessity be under the control of the Court.

Per Curiam. Judgment affirmed.