Whorley v. Memphis & Charleston Railroad

72 Ala. 20

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

BRICKELL, C. J.

A garnishment, issued as a remedy to -obtain satisfaction of a judgment, is strictly statutory, and is, In some respects, a new suit; yet, it is essentially consequential, and auxiliary to the judgment.—Blair v. Rhodes, 5 Ala. 548 Hopper v. Todd, 8 Ala. 121; Case v. Moore, 21 Ala. 758;, Jackson v. Shipman, 28 Ala. 488. It can not issue from any other court than that in which the judgment was rendered. Hopper v. Todd, supra. Like ap execution upon the judgment, it must issue in the name of the plaintiff in whose favor the judgment was rendered, though he may not be the real and beneficial owner; for, as is said, the “ suit is consequential to-the judgment in the principal case, is designed as a remedy for its collection, and must be commenced and prosecuted in the-name of the plaintiff in that judgment, no matter who may be its real owner.”—Jackson v. Shipman, supra. If the judgment-has been satisfied, and ttíe satisfaction appears of record, so that an execution can not issue, a garnishment can not issue, though the fact may be the satisfaction proceeded from a stranger, for whose use the judgment was to be kept open.—Thompson v. Wallace, 3 Ala. 132. As it is a dependency of the judgment, it is essential to the regularity of a judgment against the garnishee, that in it should be recited the fact and amount of the recovery against the oi’iginal defendant; otherwise it can not be known that the plaintiff stands in a relation which entitles him to pursue the remedy, nor that he is entitled to recover the amount that the garnishee is condemned to pay. — 1 Brick. Dig. 183, § 431. The j udgment originally rendered against the garnishee in this case, not reciting the fact and amount of the recovery against the defendant, was therefore defective and irregular.

2. At the common law, courts were not authorized to amend judgments after the close of the term at which they were rendered. It was only while the proceedings were in fieri, that the right and authority of amendment existed. Judgments and records are not, therefore, amendable at a subsequent term, except in pursuance of statutory provisions, or when there is matter of record upou which the amendment may be based— “when there is some memorial, paper, or other minute of the transactions in the case, from which what actually took place can be clearly ascertained and known.”—Albers v. Whitney, 1 Story, 310. The statute (Code of 1876, § 3154) requires the amendment of clerical errors or mistakes in final judgments, upon the application of either party, when there is sufficient matter apparent on the record or entries of the court to make the amendment. The construction of the statute has been liberal, and, while the courts have rigidly adhered to the requisition, that the evidence upon w-hich the amendment is based must be of record, or quasi of record, not resting in parol, all amendments in furtherance of justice, making the record speak the whole truth of the transaction, have been allowed. The omission, mistake, or errors of the clerical officer of the court, have-not been permitted to prejudice suitors, wben the evidence for their correction was found upon the records. The correction is, however, of clerical errors — it is not of the express judgment the court may have pronounced. It is in respect to an error or defect in the entry of the judgment the court rendered; the omission of the statement of a fact the parties are entitled to have spread upon the record, or, it may be, expunging' the statement of a fact incorrectly or impertinently introduced. The clerical duty is the entry of the judgment the court renders, however erroneous it may be; and if the duty is performed, the correction of the error must be made in an appellate court. But, when the judgment rendered is not entered, or the wrong judgment is entered, upon proper evidence the error will be corrected, and the appropriate judgment entered.

3. The recitation of the fact and amount of the recovery against the defendant, in the entry of the judgment against the garnishee, is the duty of the clerk, as is the recitation of the judgment nisi in correspondence with the recognizance.—Governor v. Knight, 8 Ala. 297; State v. Craig, 12 Ala. 363. The omission of the recitation may be corrected on motion, and the Circuit Court was in error in refusing to order the correction, and the entry of the appropriate judgment.

Neversed and remanded.