Wolfe v. Davis

74 N.C. 597

Opinion

Reade, J.

A judgment, however err/wem/e, rendered at one term, cannot be set aside at a subsequent term. But a judgment irregular, rendered at one term may be set aside at a subsequent term. (We are not speaking of the power under the Code of Civil Procedure to vacate a judgment within a year for mistake, &c., which is not applicable to our case.) An erroneous judgment is one rendered according to the course and practice of the courts, but contrary to law; as where it is for one party, when it ought to be for the other; or for two little, or too much. An irregular judgment is one contrary to the course and practice of the courts; as judgment without service of process.

In our case, the judgment against the defendant at Fall Term, 1869, was irregular, because there stood his plea of “ fully administered” undisposed of. And therefore it may be set aside, Cowles v. Hayes. 69 N. C. Rep., 406. And his Honor erred in refusing to set it aside.

In granting the motion of the plaintiff to amend the record of Fall Term, 1869, by entering a judgment- guarnió, mmo pro tune, his Honor seems to have been of the opinion that the ,power to amend, embraces something more than simply making the record speak the truth — not only what was done, but what ought to hove bam done. But that is error. And as there was not in fact any judgment gaomio rendered at Fall Term, 1869, it would be improper to make the record say that there was.

There is error. This will be certified.

Peb Cubiam. Judgment accordingly.