Hickman v. Barnes

• Decision Date: 30 April 1822
• Citation: 1 Mo. 156
• Parties: HICKMAN v. BARNES.
• Court: Missouri Supreme Court

1 Mo. 156

HICKMAN

v.BARNES.

Supreme Court of Missouri.

April Term, 1822.

ERROR TO THE CIRCUTT COURT OF HOWARD COUNTY

JONES, J.

This was an action of trover, brought by the defendant in error against the plaintiff, in the Circuit Court of Howard county, returnable to March term, 1820, on the first day of which said term the then plaintiff, Barnes, in pursuance of leave given by the Court, amended his declaration by adding two new counts, charging the defendant, Hickman, with persuading and inducing the Constable of Franklin township to levy on and selling certain heads of horses, the property of the plaintiff, then in possession of one Hezekiah Porter (to whom they had been let to hire, by the plaintiff), in virtue of executions issued on judgments obtained against said Porter before a Justice of the Peace. The defendant, not appearing on the last day of the term, a judgment by default was entered against him, and an inquiry of damages awarded, to be executed at the then next term, viz: July term, 1820. In January term, 1821, the defendant moved the Court for leave to plead to the declaration, supported by his affidavit, of having a just and lawful defense; that he wished for no delay, but was ready to go to trial upon the merits. This motion being overruled by the Court, a jury was sworn, who assessed the plaintiff's damages, whereupon judgment was entered for plaintiff. The defendant then moved to set aside the judgment for irregularity, and also in arrest of judgment, which motion, after argument, was overruled. After which, the plaintiff, on motion, obtained leave to amend the award, as to the entry of the interlocutory judgment, which was accordingly done.

The errors assigned are, first: That there is no judgment by default rendered against the defendant below, to warrant or support the final judgment. Second: That leave was refused the defendant below to plead to this action, on his motion and affidavit filed-- plea in nullo est erratum. The interlocutory judgment originally entered, after stating the defendant's default, on being solemnly called, proceeds thus: “Whereupon, it not appearing certsinly to the Court what judgment shall be entered in the premises against him (the defendant), therefore, it is considered, that a jury be summoned at the next term of this Court, to inquire of the damages,” &c. And it is contended by the counsel for the plaintiff in error, that the entry so made is not only informal but void, and does not amount to be a judgment rendered by the Court. This Court is of opinion that although the entry is not strictly formal, yet that sufficiently appears to show that a judgment by default was rendered by the Court against the defendant, the entering up of which, in due form, is the duty of the Clerk; and as a misprision of the Clerk is clearly amendable by our statute of jeofails, the Court is of opinion that the Circuit Court did not err in ordering the amendment prayed for in the entry of the interlocutory judgment, the principle being well established that amendments, in point of form, may be made, not only during the term, but at any subsequent one. ^(a)

The other matter assigned for error is the refusal of the Circuit Court to permit the defendant to plead to the action (on an affidavit being filed, of his having a legal defense), before the inquiry was executed. This Court is of opinion that if the defendant below had moved the Circuit Court to set aside the interlocutory judgment, and it had refused to do so, and that refusal had been...