Hinds County MsArchives Court.....Dickson, Mr 1839
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:07 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Dickson v. Hoff’s Adm’r.

pages 165-166

A judgment by default, writ of inquiry and verdict, without taking issue upon 
pleas pleaded, is irregular.

The notes made by the judga on the docket are not part of the record nor 
evidence for any purpose, and a judgment cannot be amended by them.

ERROR to the circuit court of Hinds county.

Webber, for plaintiff in error.

Skelton, contra, cited Com. Dig. Pleading, E. 5; 1 Ch. P1. 565; Ibid. 578-9; 
Com. Dig. E. 6; 2 Johnson’s Dig. 202, sect. 196.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The action was debt on an open account. After the writ of error was brought, 
the defendant in error suggested diminution, and had a sceond record brought 
up. The first record discloses this state of the case. After the declaration 
two pleas follow in the record, to which there are no issues. Immediately 
after the pleas comes a judgment by default, and an award of inquiry of 
damages, and then follows the verdict assessing damages. If this record 
presents the whole case, there is good ground for reversing the judgment, 
because it was irregular to take judgment by default in the face of the pleas, 
and as they appear on the record, they must have been filed before the 
judgment. It is insisted for the defendant in error that they were not filed 
at the time of taking judgment by default, but afterwards; and that the 
judgment was set aside for the purpose of allowing the pleas. In support of 
this position resort is had to the second record, and so the fact does appear 
on that record; but the counsel on the other side insists that it was 
improperly placed there. Pending the writ of error in this court, the counsel 
for the defendant in error moved the circuit court to amend the record and 
judgment according to the facts. This motion was made twelve months after 
judgment, before a different judge from the one who tried the cause. The 
motion was to amend by the docket and the entries made thereon by the judge, 
and it was sustained and the entry on the record corrected. The motion was 
improperly sustained. It was decided in the case of Burney v. Boyett, 1 How. 
Rep. 39, that the notes made by the judge on the docket, constituted no part 
of the record, and were not evidence for any purpose. That they were even more 
objectionable than parol evidence. To say nothing of the time at which the 
amendment was made, we are satisfied that the evidence on which it was made 
did not justify the amendment, and that therefore there is nothing which 
regularly varies the case from the attitude in which it was presented by the 
first record. As there is error in that record, the judgment must be reversed 
and cause remanded, with a venire de novo.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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