Bent v. Patten
| Decision Date | 01 December 1821 |
| Citation | 22 Va. 25 |
| Parties | Bent v. Patten, & c |
| Court | Virginia Supreme Court |
[Syllabus Material] [Syllabus Material]
Patten and May brought an action of debt in the Superior Court of law of Frederick county, against Bent, on a note executed by the latter to the former, for $ 284, with interest till paid. The note was dated, June 21st 1796; at which time the legal rate of interest was only 5 per cent. On the 7th day of October, 1819, the defendant (Bent) appeared and acknowledged the plaintiffs' action against him, for the sum of $ 284 with interest thereon from the 21st of June, 1796, until payment and the costs. The record proceeds to state " Therefore it is considered by the court that the plaintiffs recover against the said defendant the said sum of $ 284 with interest thereon to be computed after the rate of six per centum per annum from the said 21st day of June, 1796, and their costs by them about their suit in this behalf expended and the defendant in mercy, & c."
Bent appealed to this court, assigning as error, that a higher rate of interest was allowed by the judgment, than the law authorized at the time the note was executed.
Judgment reversed.
Gilmer, for the appellant.
That there was error in entering the judgment for six per cent. on a contract made at a time when by law all contracts bore only 5 per cent. interest, must be admitted by all. The only question to be considered is, whether such error is merely clerical, and therefore capable of correction by motion, or by writ of error coram vobis; or whether it is a judicial error, which can be corrected only by appeal.
The distinction between judicial and clerical errors he supposed to be, that the latter were mistakes capable of correction by a simple reference to some other part of the proceedings, as misrecital of sums, miscalculation, & c. Judicial errors, on the other hand, consist in the improper application of the law on admitted facts. In this case, there was nothing in the record by which the clerk could safely correct the judgment. The note on its face only purported to bear interest; it did not fix the rate: reference to it, therefore, could not decide the question, whether the rate was 5 or 6 per cent. It was then not a clerical error; for, there was nothing in the papers by which it could be controlled and corrected.
It required a decision of the question, which law was to govern the contract, that existing when it was made, or that enacted after its execution. This is a pure question of law. The judgment being on confession does not alter the case. That confession says " with interest," which must be intended " legal interest; " what was legal interest then, recurs upon us, and that, was a question of law. There was then error in law in the decision below, and an appeal was the proper method for correcting it.
Tucker, for the appellee.
The error complained of in this case, was merely clerical. The defendant came in person, and acknowledged judgment for the debt with interest from June 1796. On this confession, it was the duty of the clerk to enter the judgment for interest at the rate allowed in 1796. The error is, therefore, his, and not that of the court, which when there is a cognovit actionem, is not called on to exercise its judgment. This is what is meant by judge Pendleton in Gordon and Frazier.[a] That case is much stronger than this. Here the judgment being confessed with interest from a particular date, the act of Assembly furnished the rule by which the judgment was to be entered up. But in Gordon and Frazier, there was something more judicial in the matter: for, the error assigned was in not noticing the memorandum on the penal bill, and it was questioned by counsel in this court whether it ought to have been noticed or not.
If then this error be merely clerical, it could have been corrected in the Superior Court by motion or writ of error coram nobis.[b] It is an error in fact, which cannot be corrected by writ of error before a superior tribunal, or by a supersedeas which is but a substitute for it.
It would indeed be oppressive, if the defendant, instead of correcting the error by motion below, should burden the appellee with the costs of an appeal here.
But there is no longer room to doubt of this matter. The act of assembly, 1 Rev. Code 1819, page 512, provides " that where there is a mistake in a sum and any thing to correct by, the court or judge in vacation shall amend upon notice to the opposite party." So, that this mistake in the amount of interest, might have been amended on Bent's motion, either in the court below or by order of the judge. This law was made to prevent vexatious appeals for trivial errors, which might be corrected without difficulty.
But, if these points be against me, I offer for the appellee to release the excess under the provisions of the law, 1 Rev. Code 513, § 110, and ask such judgment as ought to have been given in the court below. In that event too, the appellee should have his costs: for, otherwise, that section of the act of assembly will be inoperative; since this court always could correct the errors of the courts below, by rendering such judgment in cases of this kind, as they ought to have rendered. Besides, as the appellant might have been relieved otherwise, we ought not to be taxed with the costs of this proceeding. Thus, this court refused the plaintiff in the writ of error coram nobis, his costs, because he did not pursue the less expensive course of a motion. [c]
As to the other errors, they are cured by the confession of judgment.
Gilmer, replied.
In the case of Gordon v. Frazier, there was wherewithal safely to correct upon the paper upon which the action was brought. It was part of the agreement, that the tobacco should be of a particular inspection; the clerk in entering the judgment should surely have followed the agreement. Here he has not followed it, for it was in effect for 5 p. cent., though not so expressed; and there is nothing on the note to shew whether it was to be entered for 5 or 6 per cent.
The statute relied on, cannot mend the appellee's case. The 108 §, page 512, applies only to " mistakes, miscalculations and misrecitals, of sums of money & c.," which can safely be corrected by other papers in the cause. There is here neither mistake, miscalculation, nor misrecital of the sum due: but a mistake in the law which shall govern the contract: neither is there any paper by which the error can be safely corrected.
The 109 § applies only to particular bonds taken by sheriffs in distress for rent & c. and as to the release of the excess proffered under the 110 §, that section is by express reference confined to the cases mentioned in the preceding section, which is shewn to have no application to this case.
The error is in the court then, and the statute has provided no means of correcting it but by appeal: the judgment must be reversed.
This is a suit on a note executed a short time before the passage of the act changing the rate of interest from 5 to 6 per cent. The defendant confessed judgment for the debt and interest, without stating the rate, and the clerk, by mistake, in entering the judgment, gave interest at the rate of 6 per cent. A supersedeas was awarded by a judge of this court, since the late act of assembly authorizing amendments of judgments, by application to the court below, at a subsequent term, or to the judge in vacation. Two questions therefore arise:
1. Whether this is a mere clerical mistake, at all times amendable on motion before the court where the judgment was entered, and consequently perhaps, not a case proper for this court.
2. Whether, if it is not such a clerical error, it is nevertheless such an error as might and ought to be amended, under the late act of assembly.
I think it is a clerical error, and was always amendable in the court below, on motion.
In the case of Gordon v. Frazier, [d] the suit was on a tobacco bond, on which credits were endorsed, and on which also there was a memorandum signed by the obligee, agreeing to receive tobacco of another inspection than those mentioned in the body of the bond. When the cause was called for trial, the plea was withdrawn, and judgment entered by nil dicit, without either giving the proper credits, or noticing the other endorsements mentioned on the back of the bond. This was considered a clerical error as to both omissions, amendable on motion.
The act authorizing judgments to be entered for the principal sum due, with interest thereon, says nothing about credits; yet under the equity of that statute, it has always been the practice and duty of the clerk to enter the credits; and so I presume it was considered his duty, in this case, to notice the endorsement relative to the other inspection, though that was a question of law of more doubt than the present, as it appears that the district court itself erred as to it on the writ of error coram nobis, which was brought in that court to correct those errors. If it was the duty of the clerk under a sound construction of the act, to notice those things on entering the judgment in that case, it would seem to me to be, a fortiori, his duty to notice the proper rate of interest in this case, the law expressly saying, that the judgment shall be entered for the principal sum due with the interest. I presume, that neither in that nor in this case, there would have been any doubt as to the nature of the error, and the power of the court to correct on motion, had they both been office judgments; but it was contended there, as it is here, that the error was in the judgment of the court. To this the president of the court answers: "...
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State v. Hutton
...a final judgment by a motion or by filing a petition for the common law writ of error coram nobis. This point was noted in Bent v. Patten, 22 Va. 25, 25–26 (1821), which said that “[t]he only question to be considered is, whether such error is merely clerical, and therefore capable of corre......