Sherry v. Priest

57 Ala. 410

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

STONE, J.

The appeal bond in this case was in the-penalty of fourteen dollars. The court below gave judgment against defendant and his sureties on the appeal bond, for all the costs, which were taxed by the clerk at $170. A motion was made in the court below to amend the judgment,, nuno pro tuno, so as to limit the judgment against the sureties to fourteen dollars, the penalty of the bond. The City Court overruled the motion, and permitted the judgment to stand as rendered. It was both the power and duty of the court below to entertain the motion, and make the correction. — 1 Brick. Dig. 78, et seq., §§ 144, 150, 152, 170, 176.

The* City Court erred in rendering judgment against the-sureties for a greater sum than the penalty of the appeal bond, and that court should have corrected the error when moved thereto.—McBarnett v. Breed, 6 Ala. 476; Witherington v. Brantley, 18 Ala. 197; McKeen v. Nelms, 9 Ala. 510; Hill v. Rushing, 4 Ala. 212 ; Pryor v. Beck, 21 Ala. 397.

Motion having been made in the court below to correct, this error, and that motion having been overruled, this court-will reverse the decision so rendered on the motion.—Rev. Code, § 2807; Warfield v. The State, 34 Ala. 261.

Judgment of the City .Court reversed, and here rendered, limiting the recovery against the sureties on the appeal bond,, to fourteen dollars of the costs. Let the appellee pay the-costs of this appeal.