Day v. Wilber

Headnote

U judgment of reversal has been pronounced, and on the next day the court improvidently order an amendment in the point on which it has proceeded, without notice of the application having been given, it will so far vacate such order as to grant a rule, admitting the party to show cause against such amendment.

The plaintiff liad, in the last term, obtained a reversal of the judgment below, for a defect in the return of the oath administered to the constable. See ante, p. 189. So soon as the court had delivered their opinion, the plaintiff’s counsel left town. The next day, Gold, on affidavit that the error arose from a clerical mistake in copying, obtained a peremptory order to amend. After the plaintiff had, on the judgment pronounced, made up his record, he was served with a copy of the order to amend. The application now was to vacate that order.

The rule for amendment was iaregular, because obtained without notice of motion. The court may certainly annex to its decisions any qualifications it *pleases, and the whole constitutes one j udgment. But when it is pronounced without those qualifications, it becomes the unqualified right of the person in favor of whom rendered, and cannot be altered without giving him an opportunity of being heard, because that would infringe upon what the law has given him. The court, therefore, has not power to make such an ex parte rule, as that of last term, in favor of the defendant. For want of notice, the'n, it must be vacated.

The court has power over its judgments during the term in which pronounced. It is in law but as one day. It was in the breast of the court till the expiration of the term, and might be modified if they pleased.