Opinion
(June Term, 1834.)
It is not competent for the Supreme Court to revise amendments made in the court below: as when a judgment is entered nunc pro tunc it cannot be reversed upon appeal, because it should have been entered at a former term.
This action was originally commenced by a warrant, and came to the County Court of MONTGOMERY on the appeal of the plaintiff. The plaintiff having succeeded in the County Court, the defendant appealed to the Superior Court, when, at the Spring Term, 1833, the judgment was affirmed, and execution issued for the amount of the verdict, and the costs of both Courts.
Mendenhall for the defendant.
No counsel appeared for the plaintiff.
At MONTMOMERY [MONTGOMERY], on the last Fall circuit, before Strange, Judge, the defendant moved to set aside the execution, because it had issued for all the costs, without a judgment therefor having been entered at the trial term. On the other hand, the plaintiff moved to have the judgment entered nunc pro tunc, which his Honor directed to be done, and the defendant appealed.
The question in the case is, whether the defendant can be subject to the cost of the plaintiff, (493) by a judgment entered of record, on motion, at a term different from that at which the verdict was rendered.
The defendant contends that as the plaintiff appealed from the judgment of a Justice of the Peace, the Superior Court had not the power to order the defendant to pay the cost, unless the order was made at the term, the cause was tried in the appellate court. The defendant says that no such judgment was rendered and recorded at the time the cause was tried, which was at Spring Term, 1843, of the Superior Court of Law of Montgomery. At the Fall Term, 1833, a motion was made to enter the judgment nunc pro tunc, which was resisted by the defendant, because section 17 of the act of 1794, directing the mode of recovering debts of twenty pounds and under, gives the plaintiff liberty to move the Court that tried the cause for costs, only at the term the trial was had, otherwise he shall pay the costs himself. The Court will in general permit a record to be amended, and a judgment to be entered nunc pro tunc, when it is delayed by the act of the Court or the Clerk. Bates v. Lockwood, 1 Term, 637; Mara v. Quin, 6 Ib., 1; Archb. P., 228. There is nothing in the case which shows us, that no motion was made, or judgment pronounced for the costs at the trial term, and at the time the verdict was rendered, although not entered of record. When the record was amended by the order of the Court, the judgment stood as of the trial term. The orders or rules for amendments of proceedings made by a Court in the progress of a suit therein depending, do not fall within the description of any part of the record, but such orders are strictly and properly matters of practice in the progress of the cause, regulated by the power of amendment which the courts of law possess. The practice of the courts below is a matter which belongs by law to the exclusive direction of that Court. It is therefore left to their own government alone, without any appeal to or revision by this Court. It is not contempt for a court of error to examine the propriety of an amendment of the record made by the Court below, being a court of record, although the order for the (494) amendment is sent up as a part of the record. The proper object of a writ of error is to remove the final judgment of the Court below, for the revision of a Superior Court, in order that the latter Court, from the premises contained in the record of the Inferior Court, may either affirm or reverse the judgment, as they draw the same or different conclusions from that which has been pronounced by the Court below. These premises are the pleadings between the parties, the proper continuance of the suit and process, the finding of the jury upon an issue in fact if any has been joined, and lastly the judgment of the Inferior Court. All these premises from which such judgment has been derived, the parties to the suit below have the right, ex debita justitia, to have upon the record.
We think, therefore, that it is not competent for this Court to examine into the propriety of the amendment, which is left to the sole direction of the Court by which it has been made. And if this be so, then the circumstance of the order for the amendment being put upon the record in this instance, cannot have the effect of giving competency to this Court to revise the propriety of such amendment. For if the grounds of the amendment are not in themselves removable by a writ of error, and if the parties to a suit have not, ex debita justitia, the right to put the rules and orders for the amendment upon the record, then this Court would have or would not have authority to inquire into the propriety of the amendments, according as the inferior court did, or did not return, in each particular instance, the order by which the amendment was made. Mellish v. Richardson, 28 Eng. C. L., 276; 1 Archb. P., 230. It has been here decided that an act done by the Superior Court, in the exercise of its discretion, is not the subject of an appeal to the Supreme Court. S. v. Lamon, 10 N.C. 75; Sneed v. Lee, 14 N.C. 364; Ballinger v. Barnes, Ib., 460; Cannon v. Beemer, Ib., 363.
PER CURIAM. Judgment affirmed.
Cited: S. v. Reid, 18 N.C. 381; Galloway v. McKeithen, 27 N.C. 13; S. v. Swepson, 83 N.C. 589; S. c., 84 N.C. 828; Long v. Long, 85 N.C. 417; Henry v. Cannon, 86 N.C. 25; Ferrell v. Hales, 119 N.C. 212.
(495)