Saffold vs. Keenan.

It is the judgment of the Court that the writs in the two cases, Carter and wife vs. George F. Buchanan, and Carter and wife vs. William R. Root, be quashed.

No. 51.-SEABORN J. SAFFOLD, plaintiff in error vs. Christopher KEENAN, defendant in error.

[1.] An application to amend a judgment is an appeal to the discretionary power of the court.

[2.] The discretion of the Circuit Courts will not be controlled by this court, in refusing motions to amend judgments after fourteen years acquiescence, especially where the proposed alteration would fix the defendant with a heavy liability; and where too, the error complained of is not one which facilitates the record, but the objection is, that the judgment rendered, is not so beneficial to the plaintiff as it might have been made.

Motion to amend judgment. In Morgan Superior Court. Judge MERRIWETHER presiding. March Term, 1847. Motion to amend overruled and error assigned thereon.

For the facts and grounds of error, the reader is referred to the opinion of the Supreme Court.

FOSTER for the plaintiff in error.

Judge CONE and JAMES H. MCHENRY, for the defendant in error, made the following points:

Amendments are either at common law or by statute. 1 Tidd Prac. 697; 1 Str. R. 137.

Amendments at common law, are while the proceedings are in "paper" or "roll," and must be made while the proceedings are in fieri, and before record. 1 Tidd Prac. 697, 711; 2 Tidd Prac. 942; 1 Salk. R. 47; 3 Salk. R. 31; 1 Bacon Abr. 145; Paine R. 486.

The statute of amendments relates only to proceedings of record. 1 Tidd Prac. 697, 711, 712.

The amendment sought and refused by the Court below is a

Saffold rs. Keenan.

statutory amendment, and in the discretion of the court. 8 Henry VI. c. 12; 5 Taunt R. 554; 10 S. & R. 357; The U.S. vs. Buford, 3 Peters R. 12; 6 Cranch R. 217; 6 S. & R. 510; 1 Kelly R. 467.

The judgment entered in this case upon the award was properly entered, and the only judgment that could be legally entered. 13 John. R. 27; 1 Hen. & Munf. R. 67; 1 Rand. R. 449; 4 Dall. R. 285; 5 Wheat. R. 294; 3 Cowen R. 70.

After a great lapse of time, and where the judgment has been performed, no amendment will be allowed. 4 Ham. R. 45; 3 Ib. 486; 1 Hen. & Munf. R. 25; 2 Va. Cases, 527; 1 Fairfield R. 278; 1 Dev. & Bat. R. 374; 5 Watts R. 176; 3 Cowen R. 50; 2 Tuck. Comm. 313, 314; Tidd Prac. 435; 1 East R. 77; 1 Hill R. 209; 2 Hill R. 447; 1 Kelly R. 466.

By the Court-LUMPKIN, J. delivering the opinion.

The plaintiff in error, in the year 1832, levied two mortgage fi. fas. upon personal property, and was proceeding to sell, when Keenan, the mortgagor, filed his bill in equity in Morgan Superior Court, alleging that he had equitable sets-off to the amount of the mortgages, and praying, among other things, that the executions might be enjoined until the final hearing of the bill. At March Term, 1833, of Morgan Court, the matters in controversy between the parties were referred, under the following order:

“Ordered, That the whole matter in controversy between the parties, including the cases pending in the Inferior Court of this county, be referred to the arbitrament and award of Isaac R. Walton, John Robson, and Isaac Walker; and should there be any amount allowed Christopher Keenan, it shall be credited on the fi. fas. which have been enjoined.

"It is further ordered, That the injunction be now dissolved, and that the sheriff proceed to sell the mortgaged property. The said arbitrators shall make up their award within sixty days from the adjournment of this Court, and deliver the same to the clerk, who shall hand a certified copy to the sheriff; and if their award be in favour of Keenan, the amount found shall be credited by the sheriff on the executions in his hands, the residue to be collected by him. The referees are to select their own day and place of sitting, giving the parties, or their attorneys, ten days notice thereof."

Saffold rs. Keenan.

The following award was duly made and returned by the arbi

trators:

"In accordance with a rule of reference to us directed from the honourable Superior Court of said County, at March Term, 1833, we have proceeded to the investigation of the matters in dispute between the parties, and do unanimously award and decree that the two mortgage fi. fas., issuing from the Inferior Court of said County, in favour of said Saffold vs. Keenan, do proceed against the said Keenan; and we do further award and decree to the said Seaborn J. Saffold all the amounts which may be due the late firm of Saffold & Keenan, by note, book account, or otherwise, and one hundred and thirty-nine dollars and seventy-nine cents, an amount due by said Keenan to said Saffold; which amount we award and decree to be entered up against the said Keenan, on the bill in equity, and costs of suit. And we further award and decree, that the cases of C. Keenan vs. S. J. Saffold, in the Inferior Court, be dismissed at said Keenan's cost."

The sheriff sold the mortgaged property, which failed to bring enough to satisfy the fi. fas.

The award made and returned by the arbitrators, was at the following term of Morgan Superior Court, (September, 1833,) made the judgment of the court, and an execution was adjudged to be issued against the principal and his security on the injunc tion bond: accordingly an execution was issued for the balance of one hundred and thirty-nine dollars and seventy-nine cents, found to be owing from Keenan to Saffold, and the amount collected.

In 1843, Saffold brought suit against Eleazer Lockwood, the security on the injunction bond, for the eventual condemnation money, claiming the difference between the amount of the two mortgage executions and the sum for which the property sold. Judge Merriwether who presided on the trial of the case, permitted the award and judgment, together with the mortgage fi. fas. to go to the jury as evidence of the amount of condemnation money. To the introduction of this testimony the counsel of Lockwood objected, and being overruled the decision was excepted to, and upon argument had before this Court, the judgment below was reversed and a new trial ordered. 1 Kelly R. 72.

At the last term of Morgan Superior Court, application was made by the attorneys of Saffold to amend the previous judgment upon the award, by inserting therein as condemnation money, the sums respectively due upon the two mortgage fi. fas.; which mo

Saffold vs. Keenan.

tion being denied, the refusal of Judge Merriwether to permit this amendment, is assigned for error in the writ before us.

[1] Great latitude is allowed by courts in amending their judicial proceedings. Daris vs. Barker, 1 Kelly R. 559. And this proposition is abundantly sanctioned and sustained by the authorities cited in that case. And while it is true, that the mere mistake of an officer is never without remedy, and the forms of the courts are always best used when they are made to promote the great ends of justice, still it must be apparent, not only that a mistake has actually been committed, but even then the courts in amending their records, will so shape their orders as not to work injustice to others. 1 Kelly R. 563.

Was there any mistake made in entering up the first judgment in this case? We think not; on the contrary, the judgment was in exact conformity with the rule of reference, and in terms of the award; the amounts respectively due upon the mortgages had been ascertained by judgments of foreclosure; and in submitting the matters in controversy between the parties to arbitrators, this indebtedness, as thus established, was not only distinctly recognised, but, by the interlocutory decree withdrawn from under the injunction and ordered to be collected; and the only jurisdiction delegated to the referees over these fi. fas. was, to have them credited in the manner specified in the rule of reference, with any amount which they might find coming from Saffold to Keenan. They find that nothing was due; on the other hand, they awarded to Saffold, against Keenan, one hundred and thirty-nine dollars and seventy-nine cents, upon general settlement, and for which they directed a decree to be entered up under the bill, together with the costs of suit. They went further, and decided that the cases in the Inferior Court, at the instance of Keenan against Saffold, should be dismissed at plaintiff's cost. True they award that the mortgage fi. fas. shall proceed; this was an act of supererogation; in doing so the arbitrators performed what was not only not required of them, but what had already been done by the chancellor; and that, too, by the consent and agreement of all concerned in the rule of reference. He ordered the executions expressly to proceed, giving to the arbitrators no other control except to credit them with any balance which they might ascertain to be coming from Saffold to Keenan; and the date of the arbitration was fixed within the interval which transpired between the dissolution of the injunction and the day of sale, in order that the de

Suffold vs. Keenan.

fendant might get the benefit of the award, provided it should be in his favour. In the mean time no delay was interposed to the admitted rights of the plaintiff; the process of the law was steadily advancing, and needed not the award of the arbitrators to impart to it motion and progression. And this view alone is conclusive that it was never understood or intended that the mortgage fi. fas. should be merged in the judgment of condemnation under the bill, as is now sought to be done by the amendment. The vitality and energy of these precepts were wholly unimpaired by that judgment, and the executions were as good and subsisting after as before its rendition; otherwise they never could have proceeded to sell the mortgaged property. This whole proceeding was illegal and void, if they were included in the award. The award virtually determined, there was no credit to be entered on these fi. fas. and nothing more; and taken in connexion with the interlocutory decree in the rule of reference, is final and conclusive as to the rights of the parties respecting their indebtedness to each other, and would I apprehend, be a full and complete bar to all further litigation between them.

And the only sum for which the judgment could have been signed, was that for which it was taken. And the defendant's Solicitor evinced a proper appreciation of the rights of his client in the premises, in disregarding so much of the award as directed the fi. fas. to go on, and in entering up his decree for the one hundred and thirty-nine dollars and seventy-nine cents, the balance due upon examination, from Keenan to Saffold in addition to the mortgage executions.

Here then is no mistake, clerical or otherwise, capable of being rectified, as would have been the case had one hundred and twenty dollars or some other sum been substituted through inadvertence for that found by the arbitrators. The judgment therefore, proposed to be altered, is the identical one not only demanded by the pleadings, but that which was in the mind of the Court and of counsel at the time. That offered is altogether new, and designed to meet an unforeseen contingency which has arisen in the course of the altercations between the parties, and which, if granted, would flatly contradict the previous proceedings had under the mortgage fi. fas. No tribunal is competent to do this, even had the application been made at a proper time. Courts may correct erroneous judgments; they cannot allow wholly different ones to correspond to the several phases which litigation assumes or presents in a