Foster v. Hicks

Decision Date18 May 1908
Docket Number13,043
Citation93 Miss. 219,46 So. 533
CourtMississippi Supreme Court
PartiesLUCY O. FOSTER ET AL v. MARGARET J. HICKS

FROM the circuit court of Jefferson county, HON. MOYSE H WILKINSSON, Judge.

Mrs Hicks, appellee, and others were plaintiffs in the court below; they recovered a judgment for $ 2,500 against a railroad company for the wrongful death of one William T Hicks, the husband of appellee, and the father of the other plaintiffs, and the judgment was entered jointly in favor of all the plaintiffs. Afterwards, at a succeeding term of the court, Mrs. Hicks, appellee, widow of the deceased, moved the court to change the judgment entry so as to make it a judgment alone in her favor. The court below sustained this motion and Mrs. Foster and another, appellants, children of decedent, and original plaintiffs, appealed from the judgment sustaining the motion to the supreme court. The railroad company, original defendant, was acquiescent.

Reversed and remanded.

R. B Anderson and Alexander & Alexander, for appellants.

Judgment cannot be amended so as to vary the rights of the parties as fixed by the original decision or to release from its operation persons or property originally affected by it, or to adjudicate a matter which should have been determined at the trial. 23 Cyc. 868, 869; Browder v. Faulkner, 2 So. 30.

While it is held that the names of the parties may be changed by an amendment, it is not proper to change the parties so as to vary the substance and effect of the judgment, or to affect the rights of the parties under the original judgment. 23 Cyc. 871. See also for a very similar case, Smith v. Fox, 15 S.W. 196. Also note that this is a Texas case decided under a statute exactly like ours.

It is not contended by appellant that a clerical error cannot be amended at any time after the term, but we submit that the judgment in this case was rendered upon a conclusion of law as shown by the pleadings, that there was no error committed by the court which was proper to be corrected, or which could be justly corrected, for the reason that said judgment was not absolutely in accordance with law.

And it is further contended by appellant that even if there was error in the judgment (the court having signed and approved the minutes) under the pleadings in this case, it was a judicial error and not subject to amendment after the term. Black on Judgments (2d ed.), § 158.

If any correction was proper to be made it could only be done in case the mistake was clerical and only when the amendment would perfect the judgment and correctly decide the interests of the parties to the suit.

Code 1906, § 721, provides the only manner of distributing damages recovered on account of the death of a person. It is mandatory and under it each child is entitled to the, same interest in any suit for damages as that of the widow, and even though the suit had been brought by Mrs. Hicks alone, each one of the children, including appellants, would have been entitled to his or her pro rata share of any judgment recovered. Appellees contend that the judgment should have been corrected at the following term of court, because they say that the judgment, as corrected, is the judgment which the court in the first instance should have rendered. The opposite is true under the above section, because it is contrary to reason that the court would have power to take from the children their quota and give tire same entirely to the widow, when the latter had no more right to or interest in the damages than any one of the children. Besides and finally, if there was error in the original judgment (which we contend there was not), it was an error of law, not of fact; an error of substance; a judicial error, varying the rights of all the parties to the suit, and was a matter which should have been determined at the term of court when the judgment was rendered.

Martin & Frierson, for appellee.

Errors that can be corrected are of two kinds, namely: judicial and clerical. Judicial errors can be corrected at the term at which they are made and only at that term. Since the record is supposed to be "in the breasts of the judges of the court and in their remembrance" during the term but departed therefrom and irrevocable after the term. This is a wise rule because in judicial errors the thing is done that was intended to be done though the opinion and ruling be not what it should have been; whereas in clerical errors the thing done was not intended to be done and they are errors, not of opinion and judgment, but of fact.

Code 1906, § 1016, is very broad in the right granted to amend.

Annotated under the section is the following:

"There is no limit of time within which an amendment may be applied for and made. If a party appear, he cannot object for want of proper notice. An amendment cannot afterwards be set aside without notice to the adverse party. Graves v. Fulton, 7 How. (Miss.) 592; Healy v. Just, 53 Miss. 547."

The clerk failed to write up the judgment according to the verdict and the right of amendment in such cases is universally acknowledged and indisputable.

"A judgment may be set aside where it is shown to have been entered by the clerk without any authority therefor, whether his entry thereof was the result of mistake, inadvertence or wrongful intent." 23 Cyc. 924.

"A mere clerical error arising from inadvertence or formal misprision of clerks or other officers may always be corrected by the court, so as to make the judgment speak the truth, even after the term." 23 Cyc. 864.

"An amendment or correction may be allowed at any time, where the judgment as entered does not correspond with the judgment as actually rendered, or with the intention and under standing of the court in regard to its forms and terms. The power of amendment may be employed to strike out surplusage or matter improperly included in the judgment, to correct wrong recitals, to change the form of the judgment to make it correspond with its rendition; and it may be employed to relieve the judgment of ambiguity, or to make it conform, to the verdict, where by mistake it was entered in terms differing therefrom." 23 Cyc. 868.

"The rule that the record admits of no alteration after the term is obsolete * * * In all cases the entry of the judgment may be made to conform to the record and the instructions of the clerk. All courts have inherent power to correct clerical errors at any time; and to make the judgment entry correspond with the judgment rendered." Freeman on Judgments, (2d ed.), 71.

"The doctrine in this country, in reference to amendments of records, may be said to have crystallized into the following legal propositions, namely: That any error or defect in the record which occurs through the act or omission of the clerk of the court in entering or failing to enter of record, its judgment or proceeding, and is not an error in the express judgment pronounced by the court in the exercise of its judicial discretion, is a mere clerical error, and amendable no matter in how important a part of the record it...

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9 cases
  • Kirkpatrick v. Ferguson-Palmer Co.
    • United States
    • Mississippi Supreme Court
    • February 18, 1918
    ...loss of the boy's services during minority under this section. There can be but one suit, where injury results in death. Foster v. Hicks, 93 Miss. 219, 46 So. 533; Mississippi Oil Co. v. Smith, 95 Miss. 528, 48 735. The case of Natchez etc., R. R. Co. v. Cook, decided in 1885, and cited by ......
  • Gulf & S.I.R. Co. v. Bradley
    • United States
    • Mississippi Supreme Court
    • October 11, 1915
    ...That some "of the parties concerned" in the recovery contemplated by such suit are not parties plaintiff therein is immaterial. Foster v. Hicks, supra. But is said by counsel for appellee that for the former judgment to constitute a bar to the present suit it must have been rendered in good......
  • St. Louis-S. F. Ry. Co. v. Thompson
    • United States
    • Oklahoma Supreme Court
    • May 28, 1929
    ...and protected." ¶28 This doctrine was reaffirmed in Howard v. Kelly, Sheriff, et al., 111 Miss. 285, 71 So. 391. ¶29 In Foster v. Hicks, 93 Miss. 219, 46 So. 533, it was held: "Under Code 1906, sec. 721, providing that, in an action for the death of a married man leaving a wife and children......
  • Hamel v. Southern Ry. Co
    • United States
    • Mississippi Supreme Court
    • November 30, 1914
    ...all damage of every kind to the decedent and all damage of every kind to any and all parties interested in the suit. See, also, Foster v. Hicks, 93 Miss. 219. It appears that this court has decided that the purpose and effect of section 721 is to prohibit the bringing of more than one actio......
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