Alexander v. Stewart

23 Ark. 18

• Court: Supreme Court of Arkansas
• Decided: January 15, 1861
• Status: Published

Opinion

Mr. Justice Compton

delivered the opinion of the Court.

Stewart sued Alexander to the November term, 1858, of the Phillips circuit court, on a promissory note for $350: Alexander appeared to the action, and pleaded payment,'to which issue was joined. The cause was then continued, and-at May term, 1859, judgment by default was entered against Alexander. At November term, 1859, on the application of Stewart, the court vacated the judgment by default, .and by a nunc pro tunc order, caused judgment to be entered against Alexander, as by consent of the parties. Alexander had no notice of this application, and having brought the record here by writ of error, insists that the judgment ought to be reversed.

There being an issue of fact upon the plea of payment, not disposed of, the judgment by default was error, as held in Reed vs. The Bank of the State, 5 Ark. 193. And, though the court below undoubtedly had the power, on the application of Stewart, to cause its record to be so amended as to speak the truth, it was error to exercise that power without notice to Alexander, who was interested in the record, and had the right to be heard on the motion to amend, as held in Martin et al. vs. Bank of the State, 20 Ark. 336.

Let the judgmet be- reversed, and the cause remanded for further proceedings.