Smith's Executors v. Todd's

26 Ky. 298, 3 J.J. Marsh. 298, 1830 Ky. LEXIS 48

• Court: Court of Appeals of Kentucky
• Decided: January 18, 1830
• Status: Published

Opinion

Chief Justice Robertson

delivered the opinion of the Court.

In 1816, Todd’s executor sued Charles Smith, as administrator of John Smith, on a note executed by the intestate; and recovered a judgment. The judgment was entered against C. Sinitu, as in ins own right.

In 1825, Thomas Townsend and James W.. Smitl}, were qualified as tue executors of C. Smith.

judgment,* bonispropriis, on no'te exe-~ cllted bJ iQ* clerical mis* prisión, a-subsequent^ ^any'tbme^ while judg-“nsaU^ned!"8 Such amend-“fj^rbe writ of error reverse judg.Q ment. Turnery for plaintiffs.

Fn 1828, the judgnrient still remaining- unsatisfied, the executors moved the court who, rendered it, to correct it, so as to make it, as it should have been, a judgment against C. Smith in his fiducial Character, to be levied ilde bonis testaloris.n

The court overruled the motion; arid the executors-have prosecuted this writ of error with a supersedeas.

That the judgment was erroneous, will be admit* ted by all who have á knowledge of the law. The error was a misprision of the clerk.

That it is amendable at a subsequent term, is equal-]y undeniable. See V. Burrows, 2730; and Speed vs. Hann, I. Monroe, 16.

The executors had a right to make'the motion.

This amendment may be tnade, after writ of error shall be prosecuted to reverse the judgment.

It may be made at any time whilst the judgment shall remain in force, and unsatisfied.

Wherefore, the circuit court erred in overruling the motion to amend.

Therefore, the order of the court, overruling the motion, is set aside, and the cause remaqded, with instructions to amend the judgment, by making it a judgment against the fiduciary. •