Henlien v. Graham

• Decision Date: 18 March 1890
• Citation: 10 S.E. 1012,32 S.C. 303
• Parties: Henlien et al. v. Graham.
• Court: South Carolina Supreme Court

10 S.E. 1012

(32 S.C. 303)

Henlien et al.

v.Graham.

Supreme Court of South Carolina.

March 18, 1890.

Judgment—Rendition—Correction.

1. Code S. C. 1882 § 267, which is a substitute for section 269 of the former Code, as amended by act of 1873, requires the order for judgment to be indorsed on, or attached to, the complaint, but omits the provision of the section for which it was substituted, that no execution shall be signed, or judgment obtained by default, in any other manner than is therein provided. Section 197 provides that the court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and that no judgment shall be affected by such error or defect. The indorsement of an order for judgment omitted the words "have judgment " or "do recover, " but its terms indicated that such was the purport, and the calendar contained an entry of "judgment for plaintiffs. " Held, that the omission was an inadvertent clerical error, and not a ground for impeaching the validity of the judgment.

2. Such error of the judge, being merely clerical, might have been corrected, if necessary, by his successor.

Appeal from common pleas circuit court of Charleston county; I. D. Witherspoon, Judge.

Barker, Gilliland & Fitzsimons, for appellant. Trenholm & Rhett, for respondents.

McIver, J. On the 18th of October, 1888, the plaintiffs commenced an action against the defendant on a note; and the complaint, which was in the usual form, together with the summons, was duly served upon the defendant personally, on the same day. The defendant failing to appear or answer, the case was placed on calendar 3; and on the call of that calendar, on the first day of the next term, viz., 20th of November, 1888, plaintiffs moved for judgment, and his honor, Judge Wallace, presiding at that term, entered on said calendar, opposite to the title of the case, these words, "Judgment for plaintiffs, " and on the same day made the following indorsement on the complaint: "The summons and complaint in this action having been duly served upon the defendant herein, and no notice of appearance, answer, or demurrer having been served, ordered that the plaintiffs, Jacob Henlien and David Bar, surviving partners of the firm of Henlien & Bar, against the defendant, Robert Graham, for the sum of twenty-five hundred and sixty-eight 54-100 dollars, together with the costs of this action. [Signed] W. H. Wallace. " It will be observed that the words "have judgment" or "do recover, " or some equivalent expression, are omitted in this indorsement; and, as will be seen, the controversy turns upon the effect of such omission. The plaintiffs entered up a formal judgment against the defendant for the sum specified, together with the costs; and the same was duly filed in the clerk's office on the 12th of December, 1888, and the amount of the judgment duly entered in the "Abstract of Judgments." Upon this judgment, execution was issued; and, the same having been returned nulla bona, the plaintiffs instituted proceedings supplementary to the execution, and applied for, and obtained from his honor, Judge Witherspoon, an order, bearingdate 18th of January, 1889, requiring, among other things, the defendant to appear before the master to answer concerning his property. Other orders were also granted, which need not be specified. The defendant then gave notice of a motion for an order to revoke the order of the 18th of January, 1889, "on the ground that the judgment upon which said orders and proceedings supplemental to the execution issued therein purport to be based, is invalid, not being based on a proper and valid order for judgment; also, that said execution and judgment as entered be set aside, and be declared null and void." This motion...