Noland v. Lock

16 Ala. 52

Opinion

DARGAN, J.

In support qf the judgment of the Orphans’ Court, it is contended, that this was a mere motion to re-tax the cost, and not a motion to set aside a judgment rendered at a previous Term. A motion to re-tax the cost of a suit is simply a motion to correct a ministerial act of the clerk, or officer whose duty it is to tax the cost; but here the defendant in errqr did pot move to have any mistake qf the clerk corrected in taxing the cost, but by his motion, he asked the court to alter the judgment for cost and to render judgment against the other party; in. one word, he asked the court to release him from tbe cost altogether, although judgment for cost bad been rendered against him, and to impose it on his adversary. Instead of being a motion to re-tax cost for a mistake of the clerk, it clearly is a motion to alter the final .judgment, that had been rendered at a previous Term, which .cannot be done.

The court erred in granting the motion, and the judgment. must be reversed.