Wall v. Covington
| Decision Date | 30 June 1880 |
| Citation | 83 N.C. 144 |
| Court | North Carolina Supreme Court |
| Parties | WALL and LEAK, Ex'rs, v. J. A. COVINGTON, Ex'r. |
OPINION TEXT STARTS HERE
MOTION to amend a record heard at Fall Term, 1879, of RICHMOND Superior Court, before Seymour, J.
In this action, which was founded on the bond of James A. Covington as administrator of J. P. Covington and Ann C. Leak as executor of John W. Leak, a surety thereto, to recover the distributive shares of the next of kin, a report of the account of the administration showing assets for distribution to the sum of $5,453.69 was made to the court, and being confirmed, judgment was entered therefor instead of for the penalty of the bond to be discharged on the payment thereof. And more than twelve months after the rendition of the judgment aforesaid, in pursuance of notice from defendant, a motion was made in the cause to amend the entry of judgment on the record so as to make it a formal one for the penalty of the administration bond to be discharged upon the payment of the amount due. The motion was resisted by the plaintiffs, and the judge having drawn up and ordered it to be entered as the judgment that was intended to have been entered, an appeal is taken to this court.
Mr. Platt D. Walker, for plaintiffs .
Mr. John D. Shaw, for defendants .
The motion made was not within section 133 of the code, as the proposed amendment nunc pro tunc was of an informal judgment entered through no mistake, inadvertence or neglect of the defendants, and the relief asked is not within apt time as prescribed in that section. It could not be for the correction of an error in law in the judgment; for, taking it as a regular judgment, it was not within the power of the court to correct such error after the end of the term at which it was entered. Wolfe v. Davis, 74 N. C., 597.
Neither can the motion be considered as made to vacate an irregular judgment, which is settled to be one rendered contrary to the course and practice of the court. It was according to the course and practice of the court on confirmation of the report of the referee finding the net surplus for distribution in the hands of James A. Covington as administrator, to render the sentence or judgment of the law upon the facts found or admitted on the record and conformably thereto, for the recovery of the sums respectively due to the plaintiffs, and the judgment so to be entered is usually entered for the penalty of the bond as a security for the said shares and to be discharged on the payment thereof and the costs of the action. Bingham on judgments, vol. 13, Law Lib., p. 63; 1 William Saunders, 58.
Just such a judgment His Honor finds as a fact was intended to have been entered by the court, and by this we must understand that the judge omitted to make any judgment in writing (which it has been decided is not necessary) as no such claim is disclosed in the statement of the case, and further that he...
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Mann v. Mann
...and the defendant cannot have it diminished. If this were not so there would be no end to litigation." The court says in Wall v. Covington, 83 N.C. 144, the insertion in the judgment must be of something actually done by the court, the entry of which was omitted by its oversight or that of ......
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Mann v. Mann
...and the defendant cannot have it diminished. If this were not so there would be no end to litigation." The court says in Wall v. Covington, 83 N. C. 144, that the insertion in the judgment must be of something actually done by the court, the entry of which was omitted by its oversight or th......
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