THE GOVERNOR, USE, &c. v. KNIGHT

THE GOVERNOR, USE, &c. v. KNIGHT. 1. A judgment nisi rendered upon a recognizance, when it does not conform to the recognizance, may be amended nunc pro tunc; and if a motion for that purpose he overruled, the refusal may he revised on error. Writ of error to the Circuit Court of Randolph. A judgment was rendered in this case, reciting that the defendant, Knight, being solemnly called to come into Court, as he was bound by his recognizance to do, came not, but made default; therefore, it was considered by the Court, that the Governor of Alabama, for the use, &c., recover of the defendant and his sureties, &c. the sum of two hundred and fifty dollars, áre., unless they appear at the then next term, and show cause, áre. Accordingly, a scire facias was issued, and served on Knight and his sureties, who appeared and moved to quash the same, because the judgment nisi did not specify the offence which the de fendant was called to answer. This motion was granted; and thereupon, while the parties were still in Court, the solicitor moved the Court, to amend the judgment nisi, that it might appear for what offence Knight was called to answer, so that another writ of scire facias might issue, requiring the appearance of the parties at a future term. This motion was founded on the indictment, and recognizance, which were sufficiently special. But it was overruled, and Knight and his sureties discharged. Attorney General, for the plaintiff in error. S. F. Rice, for the defendants. [MAJORITY — COLLIER, C. J.] COLLIER, C. J. We have always considered cases of this character, as mere civil proceedings, in which either party supposing himself aggrieved by the judgment of a primary Court, may appeal to an appellate tribunal. If the present was res integra, we should be inclined to think that the mere refusal to permit the judgment nisi to be perfected nunc pro tunc was not revisable on error, inasmuch as it would not be definitive. It would perhaps be allowable to submit the motion a second time, or oftener, to the same Court, and even if this could not be done, an action might be maintained against the defendants, upon their recognizance. There can be no question that the data furnished by the record, was such as authorized the proper judgment to be rendered. We say if this were a new question, we should not be disposed to entertain a writ of error. A mandamus certainly appears to us, to be the more appropriate remedy, but our predecessors held, that where a motion to complete a judgment nunc pro tunc was overruled, a writ of error would lie to revise the decision. This is nothing more than a mere question of practice, and as no inconvenience can result from adhering to that adjudication, we are contented to allow the maxim stare decisis to control us. [Wilkerson v. Goldthwaite, 1 Stew. & P. Rep. 159.] It results that the judgment of the Circuit Court must be reversed and the case remanded.