Sherry v. Priest

Sherry v. Priest. Motion to Amend Judgment Nuno Pro june. Judgment on appeal bond; power and duty of court to amend nunc pro - tune; error; reversal. — An appeal bond having been given in the penalty of $14, and the court below having rendered judgment against principal and surety thereon for $170, and a motion to amend the judgment nunc pro ■ tunc, to limit the judgment to the penalty of the bond, having been ipverruled— Held: 1. It was both the power and duty of the court to entertain the motion and make the correction. ' \ 2. The court erred in rendering judgment in a greater sum than the penalty of the bond. 3. In consequence of such error, this court reverses the decision on the motion, and here renders judgment limiting the recovery to the penalty of " the bond. Appeal from the City Court of Eufaula. Heard before the Hon. E. M.'Keils. This proceeding grew out of an appeal case from a justice-of the peace of Barbour county, to the City Court of Eufaula, in which case the present appellee was plaintiff, and' one Mathew Pryne defendant. On the trial of such case, de novo, in the City Court, the defendant consented to a verdict and judgment against himself for the costs, the plaintiff remitting the damages claimed in the suit. Upon such judgment execution issued against the defendant, Pryne, and his security, James Sherry, the appellant here, on the bond of appeal from the justice’s court, for $170, being the whole amount of the costs. At a subsequent term of said City Court, Sherry appeared by attorney, and orally moved the court to instruct the sheriff, in whose hands the execution still remained, that the sheriff must not levy on said Sherry’s property for any sum in excess of the penalty of' the appeal bond, which was $14. The court declined to so instruct the sheriff; whereupon Sherry’s counsel moved the court to amend the judgment entry, nuno pro tuno, so as to make the judgment conform to the legal requirements as to the defendant and his bondsmen on the appeal bond, so that the executions may not exceed the penal sum of the-bond. This motion was overruled, and the defendant now assigns such ruling of the court as error. Goode & Toney, for appellant. S. H. Dent, contra. [MAJORITY — STONE, J.] STONE, J. The appeal bond in this case was in the-penalty of fourteen dollars. The court below gave judgment against defendant and his sureties on the appeal bond, for all the costs, which were taxed by the clerk at $170. A motion was made in the court below to amend the judgment,, nuno pro tuno, so as to limit the judgment against the sureties to fourteen dollars, the penalty of the bond. The City Court overruled the motion, and permitted the judgment to stand as rendered. It was both the power and duty of the court below to entertain the motion, and make the correction. — 1 Brick. Dig. 78, et seq., §§ 144, 150, 152, 170, 176. The* City Court erred in rendering judgment against the-sureties for a greater sum than the penalty of the appeal bond, and that court should have corrected the error when moved thereto.—McBarnett v. Breed, 6 Ala. 476; Witherington v. Brantley, 18 Ala. 197; McKeen v. Nelms, 9 Ala. 510; Hill v. Rushing, 4 Ala. 212 ; Pryor v. Beck, 21 Ala. 397. Motion having been made in the court below to correct, this error, and that motion having been overruled, this court-will reverse the decision so rendered on the motion.—Rev. Code, § 2807; Warfield v. The State, 34 Ala. 261. Judgment of the City .Court reversed, and here rendered, limiting the recovery against the sureties on the appeal bond,, to fourteen dollars of the costs. Let the appellee pay the-costs of this appeal.