Sangamon County IL Archives Court.....O'Conner, V Mullen 1849
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 9:36 am

Source: Reports Of Cases Illinois
Written: 1849

Michael O'Conner v. John Mullen.

Error to Sangamon.

1. Practice—judgment in debt. It is erroneous to enter a judgment in damages, 
where the action is debt.(l)

2. Record — amendment of. Circuit courts have authority to allow amendments to 
their records, during the term at which a judgment is rendered, without 
notice; and they may allow amendments in matters of form, at a subsequent 
term, if notice, actual or constructive, has been given to the opposite party.
(2)

Mullen commenced this action in the Sangamon county circuit court, by capias, 
causing O'Conner to be held to bail, and filed his declaration in debt. On the 
20th day of March, at the March term, 1846, the defendant, O'Conner, being in 
default, a writ of inquiry was awarded, and the jury assessed the plaintiff's 
damages at two hundred dollars. It was thereupon adjudged "that the plaintiff 
recover of and from the said defendant the sum of two hundred dollars, for his 
damages, assessed as aforesaid," and his costs, etc. This proceeding was 
before Treat, judge. An amended record shows, that at the August term, 1849, 
of the said Sangamon county circuit court, on motion of plaintiff, the 
judgment rendered in this cause, at the March term, 1846, was amended so as to 
make it a judgment that the plaintiff recover of the defendant five hundred 
dollars, the debt in the plaintiff's declaration mentioned, to be discharged 
by the payment of two hundred dollars — the damages assigned by the jury. It 
was further ordered that the judgment by default be so amended as to state 
that the plaintiff recover of the defendant five hundred dollars, the debt in 
the declaration mentioned, to be discharged by the payment of such damages as 
he has sustained by reason of the breach. The proceedings upon the amended 
record were before Davis, judge. O'Conner sued out the writ of error, and 
assigns for error, that the verdict and judgment are in damages, when they 
should have been in debt and damages; and that the court had no authority to 
make the order amending the judgment, because the defendant below had not any 
notice of the motion to amend.

E. N. Powell, for plaintiff in error: The whole proceedings in the court below 
were erroneous. The first judgment was clearly wrong. The amendment of the 
record, without notice to the plaintiff in error, was equally wrong. 2d Gilm., 
281 Sears v. Low.

S. T. Logan, for defendant in error: The clerk was guilty of a misprision in 
entering up the first judgment; this was, therefore, subject to be corrected. 
No complaint that amended judgment is for too large an amount.

It was simply correcting the judgment in a matter of form. The means of 
correcting the judgment are in the record; no new matter of fact was to be 
furnished, or new inquiry instituted. The defendant, if he had been notified, 
could not possibly offer any objection to the amendment, and therefore notice 
to him was unnecessary and useless.

Powell, in reply: It was an amendment which might affect the rights of the 
parties, and therefore notice was necessary. Resort should have been had to 
this court to correct the error. The error was incurable in the court below. 
Heyl v. Stapp, 3 Scam., 95; Jones v. Loyd et al, Breese, 174. [See note 1 ed. 
1885]

Trumbull, J. This was an action of debt, commenced by capias, which was duly 
served upon O'Conner, who was the defendant below. The declaration is upon a 
bond for the conveyance of land, and claims five hundred dollars debt, and 
three hundred dollars damages. Judgment was entered by default, a writ of 
inquiry awarded, and the damages assessed at two hundred dollars; whereupon 
the circuit court, at its March term, 1846, entered judgment that 
the "plaintiff recover of and from the defendant the sum of two hundred 
dollars, for his damages assessed as aforesaid," but omitted to enter any 
judgment for the debt. This court has repeatedly decided, that it is erroneous 
to enter up judgment in damages, when the action is debt. Mayer v. Hutchinson, 
2 Gil., 266.

To obviate the objection to the form of the judgment, the defendant in error, 
since the record has been pending in this court, has had the judgment amended 
in the circuit court, so as to make it a judgment for the debt, in the 
declaration mentioned, to be discharged upon the payment of the damages 
assessed by the jury; and the amended record is now filed in this court. The 
amendment was made at the August term, 1849, of the Sangamon circuit court, 
and it is objected, that the court had no authority to make the amendment at a 
term subsequent to the one when the judgment was rendered; or, if it had such 
authority, that it was erroneous to allow the amendment, except on notice to 
the opposite party. As to the first point, we have no doubt of the authority 
of the circuit court to allow the amendment. It was the correction of a 
judgment in a matter of form only — of a mere clerical error, which all courts 
have the power, in their discretion, at any time to allow. The case of Hunter 
v. Sherman, 2 Scam., 539, is decisive of this point. But in that case, which 
shows the amendment of a record in a similar manner, and under similar 
circumstances as in this, it will be observed that notice was given of the 
application to amend, and we think notice should have been required in this 
case also. During the term that judgment is rendered, and while the record is 
before the court, an amendment of this character could properly be made 
without special notice to the opposite party, as he is then in court, but 
after the term is passed at which the judgment is rendered, the parties are no 
longer before the court, and have a right to regard the case as finally 
disposed of. If amendments are allowed at subsequent terms, it should only be 
upon actual or such constructive notice to the opposite party, by 
advertisement or otherwise, as the court where the application is made may 
prescribe, when the parties are so circumstanced as to render it impracticable 
to give actual notice. Between the time of the entry of the original judgment 
and making the amendment, rights of third persons may intervene, or those of 
the parties may be altered so as to be affected by the amendment. Hence the 
importance of giving notice, so that the court may, if it thinks proper, allow 
the amendment, upon such terms as the parties may be able to show will be just 
in the premises. It is a fundamental principle, that a party is never to be 
proceeded against, and his rights judicially determined, without notice; and 
an order or judgment entered against him in a matter whereof he has not been 
actually or constructively notified, has been held a nullity, even though no 
notice was expressly directed by statute. Chase v. Hathaway, 14 Mass., 222.
It may be, that in this particular case, the defendant below, if notified and 
present, could not have shown any reason why the amendment should not have 
been allowed; but in some other case it may so happen that a good reason may 
exist, why a judgment should not be amended at a subsequent term, even so as 
to correct a formal or clerical error, except it be upon terms so as to 
protect intervening rights. The law acts by general rules, and will not allow 
an amendment to be made without notice to-day, and require notice to-morrow, 
where the cases are essentially the same.

To allow a party, after a lapse of several years from the time judgment was 
entered, to come in to court, and on his ex parte motion, without notice to 
the opposite party, amend the record, would be establishing a most dangerous 
rule, and rendering the records of the courts, which should be fixed and 
stable, altogether uncertain and unreliable.

The judgment of the circuit court is reversed, and the cause remanded.

Judgment reversed.

-----------------
Followed—O'Conner v. Mullen, post, p. 116; Explained—Cook v. Wood,, 24 Ill., 
295; Limited—Laflin v. White, 38 Ill., 340; Cited—Frame v. Frame, 16 Ill., 
155; Low v. Nolte, 16 Ill., 475; Coughran v. Gutchens, 18 Ill., 390; Chapman 
v. Wright, 20 Ill., 120; Swift v. Green, 20 Ill., 173; Maguire v. Xenia, 54 
Ill., 299; Ross v. Taylor, 63 Ill., 215; Bryant v. Vix, 83 Ill., 11.

(1) See Jones v. Lloyd, Breese, 174, and note 1, in which the authorities 
collated.

(2) The power to rectify error, at a proper time, exists in all departments of 
the government, People v. Hatch, 19 Ill., 283, nevertheless, the allowance of 
amendments can not be brought within any general rule; but, the matter rests, 
generally in the sound discretion of the court, Martin v. Russell, 3 Scam., 
342, and they are to be allowed or refused as shall most conduce to the 
furtherance of justice, under the peculiar circumstances of each case, Jackson 
v. Warren, 32 Ill., 331; and, it has been said, amendments are always allowed, 
where there is any thing to amend by and injury will not result to the other 
party, Lake v. Morse, 11 Ill., 589; but, in the same case, it is held the 
court will not permit an amendment which will change the parties to the 
action, unless there is some thiug in the record to authorize the amendment 
and especially, is this the rule, in relation to amendments that change the 
plaintiffs in the action.

The doctrine in the text of the case, supra, was re-affirmed in Stahl v. 
Webster, post, p. 511, at the next succeeding term (June, 1850) and in 
Coughran v. Gutchens, 18 Ill., 390, the rule was announced, that pendente lite 
or at the time of the decision of the cause, the court may amend or correct 
its record; afterward, the cause being no longer depending, the power of the 
court over its record is limited to the correction of errors and mistakes of 
officers, after notice and saving rights which may have intervened, these may 
at any time be rectified; subject to the limitation the amendment is to be 
made from the memoranda or minutes of the judge or from the pleadings and 
record, and, not from the testimony of witnesses testifying ex parte (see 
Troutman v. Hills, 5 Bradw., 396, for a case of amendment allowed, not 
warranted by the existing minutes of the judge).

During the term the record may be altered, changed or modified, as justice may 
require. The court may vacate its judgment and let persons, not served with 
process, in to defend, Leslie v. Fischer, 62 Ill., 118; see Smith v. 
Vanderburg, 46 Ill., 34.

As to amendments at a term subsequent, no material amendment is allowable save 
on special notice given to the adverse party and on application made in open 
court, M'Cormick v. Wheeler, 36 Ill., 114; Means v. Means, 42 Ill., 50; 
Wallahan v. People, 40 Ill., 102; Mass. M. L. Ins. Co. v. Kellogg, 82 Ill., 
614; and, any such amendment allowed without such notice is unauthorized and 
erroneous, Bryant v. Vix, 83 Ill., 11; for, after term expired, at which 
judgment is rendered, the same court that rendered it has no supervisory power 
over the record thereof save to correct matters of form, on notice, Lill v. 
Stookey, 72 Ill., 495; People v. Quick, 92 Ill., 580; Goucher v. Patterson, 94 
Ill., 525. The supreme court, however, recognizes it to be the common law 
right of a party to have errors of fact corrected in the trial court, on 
motion and notice, at a subsequent term, Mains v. Cosner, 67 Ill., 536, as 
that, by inadvertence, damages were assessed on a day prior to the day fixed 
by order of court as that on which damages should be assessed, Cairo, etc., R. 
R. Co. v. Holbrook, 79 Ill., 419; Baragwanath v. Wilson, 4 Bradw., 80; so, a 
mistake in making up the record of a cause is amendable at a term subsequent, 
Mitcheltree v. Sparks, 1 Scam., 122; Duncan v. M'Affee, 3 Scam., 93, as where 
the clerk entered a judgment largely in excess of that rendered on the 
verdict, Seely v. Pelton, 63 Ill., 101; and, even after writ of error sued 
out, a judgment record was allowed amended, by remittitur of excess of 
jugdment, Hunter v. Sherman, 3 Scam., 539. So, where a bill of exceptions 
failed to show all the evidence contained, it was properly amended, Goodrich 
v. Minonk, 63 Ill., 131; and, where the record of judgment for taxes omitted 
mere matters of form and clerical mistake, so as not to vitiate the proper 
judgment, Atkins v. Hinman, 3 Gilm., 437. So, it was held the trial court 
properly amended his record, to make the placita show one judge, and not five, 
sat to hear the case, in aid of the judgment as being matter not relating to 
the merits of the action or any finding or judgment of the court; but, going 
only to the form, Dunham v. S. Park Comm'rs, 87 Ill., 185. So, the judgment 
record showing an appearance by attorney and not by service of process, 
according to the fact, was amendable, Lyon v. Boilvin, 3 Gilm., 639. So, where 
the probate judge certified the administrator had settled the estate of his 
intestate, but, the court had omitted to spread the same on the record, the 
administrator was properly allowed to show the same of record, nunc pro tune, 
Frame v. Frame, 16 Ill., 155. As between the original parties to the record 
there seems to be no limitation as to time when amendment is allowable; but, 
rights acquired, by persons not parties to the record, prior to such amendment 
are in nowise, thereby, affected, Church v. English, 81 Ill., 443.

Generally, after the term at which final decree in chancery is entered no 
amendment of the record thereof is allowable, Lilly v. Shaw, 59 Ill., 73, the 
exceptions to this rule being confined to mere matters of form or matters 
quite of course, Lilly v. Shaw, 59 Ill., 72; Ill L. & L. Co. v. M'Cormick, 61 
Ill., 333; thus it was held allowable to correct a clerical error in such a 
record, by supplying an omission evident from the minutes of the court; but, 
if it did not appear it was the intent of the court to insert the particular 
clause, it was a judicial error, to be remedied only on error to the supreme 
court, Forquer v. Forquer, 19 Ill., 68. In like manner where the file mark on 
a bill was in reality mistaken, the party affected may, within a reasonable 
time, apply on notice, for leave to the clerk to amend, Hodgen v. Guttery, 58 
Ill., 431; but, where the final decree dismissed a bill an amendment of 
record, at subsequent term, without prejudice, without notice, was void, Swift 
v. Allen, 55 Ill., 303, as was, also, an amendment allowing solicitor's fees 
in partition proceeding, the decree covering costs and being final and not 
providing for such fees, Lilly v. Shaw, 59 Ill., 72; but, where at the same 
term a decree was amended reducing the amount of money to be paid or made in 
foreclosing the mortgage, without notice, it was held to be error without 
prejudice of which respondent might not complain, Palmer v. Harris, 100 Ill., 
276.

There is no jurisdiction or power to amend the record of judgment in a 
criminal case at a subsequent term, People v. Whitson, 74 Ill., 20; such case 
not being within the statute of amendments and jeofails, R. S., 1845, p. 51, § 
14; R. S., 1874, p. 138, § 11; Cothran's Stat., p. 98, § 11; but, where at 
October term an indictment was found, etc., and no entry of record made, it 
was held proper, on sufficient evidence of the fact to amend the record, in 
respect of this, nunc pro tune, the cause being then pending, even after 
verdict, May v. People, 92 Ill., 343.

In Duncan v. M'Affee, 3 Scam., 93, the supreme court amended the record of 
final judgment by it entered, by adding interest, justly earned, but that 
court can not amend or order the amendment of the record below; but, at most 
can only allow a continuance to allow an application to amend in the trial 
court, Bergen v. Riggs, 40 Ill., 61; Ballance v. Leonard, 40 Ill., 72; Wilder 
v. House. 40 Ill., 92. Not even with the original papers before it will the 
court amend the transcript. Ill. Cent. R. R. Co. v. Garish, 40 Ill., 70. After 
affirmance in the supreme court there can be no correction of the judgment 
below, Mains v. Cosner, 67 Ill., 536.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

File at: http://files.usgwarchives.net/il/sangamon/court/oconner88gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 16.8 Kb