Patterson v. Walton

• Decision Date: 08 December 1896
• Court: North Carolina Supreme Court
• Parties: PATTERSON. v. WALTON et al.

26 S.E. 43

119 N.C. 500

PATTERSON.

v.WALTON et al.

Supreme Court of North Carolina.

Dec. 8, 1896.

Judgment — Correcting Clerical Errors —Revival as to One Defendant—Limitations.

1. Where, in docketing a judgment of a justice of the peace, the initials of the party in whose favor it is rendered are transposed from "R. M. P." to "M. R. P., " the error may be corrected on motion to revive the judgment; there being no dispute as to the identity of the moving party as owner of the judgment.

2. A motion to revive a judgment of a justice of the peace docketed in the superior court is not barred if made within 10 years after its rendition.

3. Where a judgment in favor of plaintiff is joint and several, he may elect as to which of the defendants he will have it revived.

Appeal from superior court, Burke county; W. L. Norwood, Judge.

Motion by R. M. Patterson against E. S. Walton and others to revive a judgment. The clerk denied the motion, and from a judgment reversing his action defendants appeal. Affirmed.

Avery & Ervin and M. Silver, for appellants.

J. T. Perkins, for appellee.

CLARK, J. There is no question as to the identity of the plaintiff, "M. R. Patterson, " named in the judgment, with "R. M. Patterson, " who now moves to revive the judgment. Both the mover and the defendants swear to that effect, and the judge finds it to be a fact. The judgment might well, therefore, have been revived in the name of "M. R. Patterson, " and the sheriff, when the money was collected, would have to pay it over to "R. M. Patterson, " though styled "M. R. Patterson" in the judgment, upon being satisfied of the identity of the person. A similar instance is where an execution is issued in the name of a feme sole, and, on the return of the execution, she has changed her name by marriage. Names are to designate persons, and, where the identity is certain, a variance in the name is immaterial. Gibbs v. Puller, 66 N. C. 116. "Errors or defects in the pleadings or proceedings, not affecting substantial rights, are to be disregarded at every stage of the action." Code, § 276. It is true that the amendment of a record should be made in the court where it was made (Adams v. Reeves, 76 N. C. 412), and that a justice's judgment can only be vacated or set aside by proceedings before him or his successor, unless it is taken into the superior court by recordari. Whitehurst v. Transportation Co., 109 N. C. 342, 13 S. E. 937; Morton v. Rippy, 84 N. C. 611. But this is not a matter affecting the merits of the...