I. B. Rowell & Co. v. Sandifer

• Decision Date: 25 May 1922
• Docket Number: 22071
• Parties: I. B. ROWELL & CO. et al. v. SANDIFER
• Court: Mississippi Supreme Court

91 So. 899

129 Miss. 167

I. B. ROWELL & CO. et al. v. SANDIFER

No. 22071

Supreme Court of Mississippi

May 25, 1922

1 ATTACHMENT. Complainant not required to give bond before issuance of attachment.

There is no provision in the statute regulating attachments in chancery which requires the complainant to give bond before the issuance of the attachment.

2. APPEAL AND ERROR. Evidence presumed to support decree, where stenographer's notes have been stricken.

The presumption that the evidence supported the decree of the chancellor will prevail, where the stenographer's notes of the evidence have been stricken from the evidence.

3 JUDGMENT. Court may strike out judgment erroneously entered by mistake and substitute judgment actually rendered.

Power to correct a judgment rendered at a former term, so as to strike out a judgment erroneously entered by mistake, and substitute for it the wholly different judgment actually rendered by the court, is a power inherent in every court of record.

HON. G C. TANN, Chancellor.

APPEAL from chancery court, Rankin county, HON. G. C. TANN Chancellor.

Suit by W. T. Sandifer against I. B. Rowell & Co. and others. From the decree rendered, defendants appeal. Affirmed, as modified.

Decree modified.

W. M Lofton, for appellant.

The officer had no authority to levy on the personal property involved in this suit without first an affidavit being made and bond given as required by law.

It is the contention of appellants that this case is based on the same state of facts, as the case of Advance Lumber Co. v. Laurel National Bank, 86 Miss. 418, 38 So. 313. In the case just cited, only personal property was levied upon, and no bond was given. So in the case before the court only personal property was levied upon, viz., the Ford starters. In the case cited, the remedy sought to be pursued was an attachment in chancery and this is true with reference to the case at bar. The case cited, holds that personal property of a non-resident defendant can be seized under an attachment in chancery to await final decree only upon affidavit and bond as required by sections 563 and 564 regulating the right of sequestration.

In making this argument, I will state that I am perfectly familiar with the case of Bonds v. L. Garvey & Co. et al., 87 Miss. 335, 39 So. 492, and must confess that I am not able to reconcile its holding with that in the Advance Lumber Company case. However, the Advance Lumber Company case does hold that a writ of attachment in chancery cannot issue till an affidavit has been made and bond given, and the Bonds case does not refer to this case, or comment on it. So, I must assume that it is not overruled. This being true, I most seriously insist that the Advance Lumber Company case settles the case at bar, and on the doctrine therein announced, a judgment should be entered here, reversing the case sustaining the motion to quash the writ of attachment and sustaining the demurrer, and dismissing the bill.

The court erred in rendering a decree on March 29, 1921, against the said United States Fidelity & Guaranty Company for the reason that it could not at a subsequent term of the court enlarge its decree so as to include a surety not originally included therein.

It will be observed from reading the above copied decree, that it is a final decree, disposing of all the issues involved in or growing out of the above styled cause. In other words, the above is a final decree, and it will be observed that the name of the United States Fidelity & Guaranty Company does not appear therein.

There was another cause of the demurrer, which denied the authority of the chancery court at the March Term 1921 to enlarge its decree rendered at the September Term 1920, so as to include a recovery against the said United States Fidelity & Guaranty Company, which latter company was merely a surety on the bond of the said O. B. Rowell Company, and the said surety company was not included in the original decree. After the demurrer was overruled, an answer was filed, which also made the same contention. The chancery court, however, took a different view of the matter, and granted a decree, which undertook to enlarge the final decree of September 29, 1920, by including therein the said United States Fidelity & Guaranty Company, which latter company was merely a surety on the bond of the said I. B. Rowell Company. The court had no authority to do this. Barber v. Biloxi, 76 Miss. 578, 25 So. 298.

So, I submit this case with an abiding confidence that I leave the cause of these appellants in the hands of a court of undoubted legal learning and with full confidence that the decree of the lower court will be reversed, bill dismissed, and the appellee taxed with all costs of this proceeding.

E. W. Patrick, for appellee.

It is contended by counsel that Advance Lumbar Company v. Laurel National Bank, 86 Miss. 418, 38 So. 313, is in line with the case at bar and that the court below erred in the instant case because he failed to sustain the demurrer to this bill and the motion to quash the writ of attachment.

The chancery court has jurisdiction in attachment against non-residents in the following cases prescribed by statute, Mississippi Code 1906, section 546, Hemingway's Code, section 293.

The case of Advance Lumber Company v. Laurel National Bank, 86 Miss. 418, 38 So. 313, is a case in which the Advance Lumber Company owned in Jones county certain personal property which the Laurel National Bank attempted to levy upon in an attachment suit in the chancery court for an indebtedness claimed by the Laurel National Bank against the Advance Lumber Company. In that case the court quite properly held that the writ of attachment should be quashed because of the fact that the chancery court had no jurisdiction of the case under Mississippi Code 1906, section 536, Mississippi Code 1892, section 486 et seq.

In the case at bar the Alabama & Vicksburg Railroad Company held the effects of the nonresident defendant, and the bill of complaint so alleges. Bonds v. L. Garvey & Company, 87 Miss. 335, 39 So. 492.

The statute, Mississippi Code 1906, section 526, Hemingway's Code, section 293 gives the chancery court jurisdiction in these matters and no bond is required in these cases as attachments at law. The court will observe that in the Advance Lumber Company v. Laurel National Bank, 86 Miss. 418, 38 So. 313, that the property belonging to the Advance Lumber Company a nonresident of this state was not held by anyone, while in the instant case the property of the nonresident was held by the Alabama & Vicksburg Railroad Company, a resident of this state, which complies absolutely with the statute as above referred to, giving the chancery court jurisdiction in attachment suits against nonresidents.

The fifth assignment of error and point V of the brief of the appellants of this case contends: "The court erred in rendering a decree on March 29, 1921, against the United States Fidelity & Guaranty Company for the reason that it could not at a subsequent term of the court enlarge its decree so as to include a surety not originally included therein.

To this statement of the law there can be no doubt. No court has the right to enlarge its decree by including another party which was not originally included therein, but "All courts of record have inherent power to correct clerical errors at any time and to make this judgment entry correspond with the judgment rendered. This power exists in criminal prosecutions as well as in civil (1 Freeman on Judgments, section 71)."

The power to correct a judgment rendered at a former term, not in some clerical matter merely as to name or amount, but so as to strike out a judgment erroneously entered through mistake of the clerk, and substitute for it the judgment actually rendered is inherent in every court of record and not derived from the statute. Wilson v. Town of Hansboro, 54 So. 845.

The very best and clearest authority we have seen upon this subject in the case of Frink v. Frink, 43 N.H. 508, 80 Am. Dec. 190, 191; Remick v. Butterfield, 31 N.H. 70, 64 Am. Dec. 316; Dudley v. Butler, 10 N.H. 70, 64 Am. Dec. 316; Dudley v. Butler, 10 N.H. 284; Williard v. Harvey, 24 N.H. 344; Claggett v. Simes, 31 N.H. 23. Or, as the same doctrine is well expressed by FLETCHER, J., in Blach v. Chaw, 7 Cush. (Mass.) 284; S. P. Fay v. Wenzell, 8 Cush. (Mass.) 317; In re Limerick, Peter, 18 Me. 186; Lothrop v. Page, 26 Me. 121; Woodcock v. Parker, 35 Me. 138; Lewis v. Ross, 37 Me. 234, 59 Am. Dec. 49; Weed v. Weed, 25 Conn. 337; Chinchester v. Cande, 3 Cow. (N. Y.) 39, 15 Am. Dec. 238; Hunt v. Grant, 19 Wend. (N. Y.) 90. This authority not only extends to the correction of clerical errors, but to the restoration of papers which have been improperly altered of defaced, and the substitution of new ones where the originals are purloined or lost. Douglas v. Yallop, 2 Burr. 722; Hollister v. Judges, 8 Ohio St. 201, 70 Am. Dec. 100.

"It is contended, and so are some of the authorities, that an amendment of a record cannot be made unless there is something to amend by, by which is understood something upon the files or records of the court. Wendell v Muridge, 19 N.H. 112; Atkins v. Sawyer, 1 Pick. (Mass.) 254, 11 Am. Dec. 188; Greenville v. Smith, Cro. Jac. 628; Mason v. Fox, Cro. Jac. But in other cases such amendments have been made according to the minutes of the judge. Coughran v. Gutcheus, 18 Ill. 390; Brady v. Little, 21 Ga. 132; Petrie v. Hanny, 3 Term R. 659; 1 Tidd's Pr. 66; Newcombe v. Green, 1 Wils. 33, 2 Str. 1197; Eddowes v. Hopkins, 1 Doug. 376; Tarlton v. Fischer, 2 Doug. 672. Here we have the minutes of the judge, and the counsel entirely clear upon the point. But we think it...