Norris v. Cottrell

20 Ala. 304

• Court: Supreme Court of Alabama
• Decided: January 15, 1852
• Status: Published

Opinions

PHELAN, J.

The mistake which occurred in the calcution of the interest was clearly a mistake of the clerk. The statute devolves upon him expressly the duty of calculating tbe interest, wben a judgment by default is rendered on a note, bill, or other writing ascertaining tbe plaintiff’s demand. Clay’s Dig. 325, §70.

Tbe right to correct such a mistake as this, by motion to amend in tbe same court in which it occurs, at any time within three years ¿rom its occurrence, is conferred by statute upon the party affected by it. Clay’s Dig. 322, § 55.

The original judgment in this case was removed by defend-' ant, by writ of error, to the Supreme Court, at the term next succeeding that of the court below at which it was rendered. The plaintiff in error in that case neglected to file the transcript, and the judgment below was affirmed on certificate. In this way the judgment below was merged in the judgment'of this court, and no effectual motion to amend under the statute could be made anywhere; not in the court below, for it no longer had jurisdiction of the case, Wiswall v. Munroe, 4 Ala. 19; and not in this court, for there was nothing in the record to amend by. Stephens et al. v. Norris, Stodder & Co.. 15 Ala.

To hold that the mistake of the clerk, in which this state of affairs originated, or the act of the defendant in error in suing out his writ of error on that judgment, should, either separately or taken together, have the effect to deprive the plaintiff of the remedy given him by statute, to amend by motion within three years, and leave him without any other remedy, on the ground that this had been lost by his laches, is not consistent with sound reason or justice. He was not responsible for the act of the one, and could in no wise control that of the other, and upon well settled principles, he cannot be prejudiced by either or both.

The cases of McGrew v. The Tombeckbee Bank, 5 Porter, 547, 13 Ala. 540, and Drew v. Hayne, 8 Ala. 438, to which We have been cited by the counsel for defendant in error, are, as we conceive, entirely distinguishable from the case at bar, ip. the fact that .here we find no neglect properly imputable to the plaintiffs in error, for the mistake in the calculation- of the interest in the Circuit Court. The statute allowed him three years to find out and correct this by motion. But if the law-allows him to repose on'the calculation of the clerk at all, it will not hold -him to the duty of detecting the mistake by the inspection of tbe certificate, wbicb is issued to bim when the case is taken to the Supreme Court by the defendant; for that contains only the amount of the judgment below, without showing what is principal and what is interest, and in this the clerk would necessarily embody his own mistake, without any of the means for its detection which existed in the record that the plaintiff in error declines to bring up. See the case of Mechanics' Bank of New York v. Minthorne, 19 Johnson, 244.

Under such circumstances, the case was a clear one for the exercise of the old and acknowledged jurisdiction of a court of equity to correct mistakes, and the court below erred in dismissing the bill.

The decree of the court below dismissing the bill is reversed, and the cause remanded.