Bradhurst v. Pearson, 32 N.C. 55, 10 Ired. 55 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 55, 10 Ired. 55

WILLIAM W. BRADHURST vs. JOHN H. PEARSON.

When the alteration of a writ, after bail has been given, changes the iraturs of the action, the bail is discharged.

But where in an action against two joint and several contractors, a nonsuit is entered, and afterwards the non-suit is set aside as to one, and not as to the other, the bail of the one, as to whom the non-suit was set aside and a verdict and judgment subsequently rendered against him, is not discharged. A judgment nunc pro tunc, is a judgment of the term of the Court, at which the Court, making the amendment, says it ought to have been rendered. The cases of Bryanv. Bradley, Tay. Rep. 77, and Jones v. Ross, 2 Car. L. Rep 450, cited and approved.

Appeal from the Superior Court of Law of Burke County, at the Fall Term 1848, his Honor Judge Manly presiding.

This is a sci. fa, against the defendant, as special bail of one McEIrath. The following is the case agreed. In 1840, the plaintiff sued out his writ against J. J. McEIrath and A. II. Erwin, and declared against them in assumpsit, as copartners. The writ was executed by the defendant, w’ho was the sheriff of the County, and he became the bail of the defendants. The suit continued in Court until the Fall Term 1845. when the plaintiff was non-suited, and, the non-suit being set aside as to McEIrath, the suit was prosecuted against him and a verdict obtained, at the Spring Term 1846. No formal judgment was entered up against McEIrath, until the Spring Term 1849, when the Court, on motion, ordered a judgment to be entered in the case, as of Spring Term 1846. This order of the Court was opposed by the counsel of the defendant. A fieri facias issued, returnable to Fall Term 1846, against McEIrath, and was returned nulla bona, and the sci.fa. was issued to Fall Term of that year. A verdict and judgment were rendered for the plaintiff and the defendant appealed.

N. W. Woodfni, for the plaintiff.

Byman, T. R. Caldwell and Gaither, for flic defendánt.

Nash, j.

On the part of (he defendant it is urged, that, by the non-suit in the original suit, at the Fall Term 1845, the case was out of Court; and, by setting aside the non-suit, as to the defendant McElrath, and prosecuting the suit against him alone, the bail was discharged. The objection proceeds upon the ground, that an)' alteration of a writ, whereby the nature of the action is changed, after bail has been given, will discharge the bail. This is true, and for the reason that, after the alteration, the action ceases to be the one, to which the bail agreed to answer, but the change must be one, which alters the nature oí the action. Bryan v. Bradley, Tay. Rep. 77. Here the action continued the same, and the obligation of the defendant, as special bail for each defendant, continued the same. It is a mistake to suppose, that the non-suit so put the cause out of Court, as finally to discharge any of the parties.' Upon setting it aside, the case is reinstated, and continues the same. The order made, in setting aside the non-suit, is in effect the same, as if it had been unconditional, and the plaintiff had then entered a nol. pros, as to the defendant Erwin. This he certainly could have done without discharging the bail of Mc-Elrath.

In this State all contracts are joint and several, andan action can be maintained against the whole or any number of the joint contractors And, in an action of assumpsit, against two persons, the jury may render a verdict against one, and in favor of the other — Jones v. Ross, 2 Car. L. Rep. 450 — just as in an action of tort. When, therefore, the non-suit was set aside, as to Erwin alone, and the suit continued on the record against McElrath, it was in law the same action.

It is further objected, that at the time the sci. fa. issued, no judgment had been rendered by the Court, on the verdict against McElrath. The case agreed shews, that the record of the Spring Term 1846 was, at the Spring Term 1849, of the same Court, amended by an order of Court, directing a formal judgment to be entered on the verdict against McElrath. It has been repeatedly decided, that any Court possesses the power to amend its own records, so as to make them conform to the truth ; and that we have no right to interfere with its exercise. When so amended, it is the duty of the clerk, in whose custody it is, in giving a transcript of it, to certify it as it is amended, as if it were originally full and complete, without noticing the order to amend. That order appears upon the records of the Court, at the Term, when made, if a different one, and is his authority for so altering the original.

We have nothing to do with the amending order, and can not look behind the record, as certified to us.

We see no error in the judgment below, and it must be affirmed.

Pas Curiam.

Judgment affirmed.