Smith v. Hood & Co.

• Citation: 25 Pa. 218
• Parties: Smith versus Hood & Co.
• Decision Date: 01 January 1855
• Court: United States State Supreme Court of Pennsylvania

25 Pa. 218

Smith versus Hood & Co.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Greene county.

Purman, for plaintiff in error.—In contemplation of law every judgment is the Act of the Court. Judiciam quasi juris dictum, and therefore judicium semper pro veritate accipitur. It is immaterial whether it is by cognovit or the verdict of a jury: 4 Watts 475. The case of Ullery v. Clark, 6 Harris 148, is decisive of this case. After execution executed, the judgment could not be reformed. 6 Watts 513 only decides that a judgment may be corrected before any proceedings had upon it. After execution executed, the power of the Court was exhausted. A party who has received the fruits of a judgment, cannot reverse it on a writ of error: 1 Penn. Rep. 114; 2 W. & Ser. 101; 5 P. L. J. 416. Accepting the amount was a satisfaction of the judgment, and the payment to the sheriff discharged the judgment: 5 Barr 518; 3 Bl. Com. 415. One entry exhausts the warrant of attorney: 6 Ser. & R. 296; 14 Ser. & R. 166.

In this case there was a levy, which was an entire satisfaction: 10 Watts 9. Every subsequent writ is based upon the return of the previous one; but this is incongruous with the prior return: 5 Barr 519.

T. Burson, for defendants in error.—The Court had power to amend, where there was anything to amend by, and the rights of third persons were not affected. There is a wide distinction between a clerical mistake and an error of judgment in the Court. The case in 6 Harris 148 was of the latter description. And so of the cases cited from 6 Watts 513, 1 Pa. Rep. 114, and 2 W. & Ser. 107. Nor did the case fall within the cases in 6 Ser. & R. 296, and 14 Ser. & R. 166, for here there was no second entry — it was a mere correction of the first. The first entry was for a less amount than the note and warrant called for, and could not exhaust the power of the Court.

An amendment may be made even after error brought, if purchasers and third persons are not affected by it: 6 Wh. Rep. 340; 5 Watts 186; 2 Rawle

The granting this amendment was discretionary with the Court, and not the subject of review upon a writ of error: 1 Barr 321; 6 Ser. & R. 510; 7 Ser. & R. 180; 3 Pa. Rep. 65; 2 Watts 312.

The plaintiff below had a right to issue a fi. fa., so long as any part of the judgment remained unpaid: 5 Binn. 266.

The opinion of the Court was delivered by LEWIS, C. J.

Where there is anything on the record, or filed with it as a part of the proceedings in the cause, to justify an amendment, it may be made, even after error brought. The record, if brought up on error, will be remitted to the Court below for the purpose. A venditioni exponas may be amended by the precipe, by inserting the name of one of the defendants, even after the writ is executed by a sale of the land of the defendants, and after ejectment brought by the purchaser on the sheriff's deed: Sickler v. Overton, 3 Barr 325. So the omission of a specified item of property in the venditioni exponas may be amended by the levy and the sheriff's deed, even after the lapse of forty years: De Haas v. Bunn, 2 Barr 338. A judgment entered against a defendant by the wrong Christian name may be amended by the bond and warrant of attorney, as between the parties; but such amendment cannot be made so as to affect the rights of third persons: Zimmerman v. Briggans, 5 Watts 186. So a judgment may be amended from a less to a greater sum, by the paper on file assessing the damages. This, as between the parties, may be done after bail given for the stay of execution, ca. sa. issued and returned, and after an action brought against the bail, a trial had, and writ of error brought; but amendments of this character cannot affect the rights of the bail, or of creditors or purchasers. As between the parties themselves they do no injustice, and are attended with no danger as long as they are confined to cases where there is something to amend by: Crutcher v. The...