Opinion
July Term, 1812.
From Cumberland.
Judgment set aside upon motion for irregularity. Judgments confessed before the clerk, where there is no court, are irregular, and will be set aside upon motion. The rendering of a judgment is a judicial act to be done by the court only.
THIS was a motion to set aside a judgment for irregularity. A writ was sued out at the instance of the plaintiffs against the defendants, returnable to the Superior Court of Law for CUMBERLAND, at Spring Term, 1811, the service of which was acknowledged by the defendants on 4 March, 1811, and the following indorsement was made:
Service acknowledged 4 March, 1811.
WM. MOORE, C. HARRIS.
Teste: D. MCINTIRE.
Judgment confessed by the defendants in person, agreeably to the specialties filed. Any credits that shall appear on statement between the plaintiffs and William Moore to be admitted. Stay of execution six months.
WM. MOORE, C. HARRIS.
Afterwards, during the week appointed by law for holding the court in April, 1811, the clerk entered up judgment agreeably to this indorsement; and when six months had expired he issued execution for the debt and costs. William Moore, one of the defendants, applied to one of the judges for a writ of supersedeas, and made an affidavit setting forth "that some time in the week assigned by law for holding the Superior Court in the county of Cumberland, in the spring of 1811, he and Claiborn Harris confessed a judgment before the clerk of said court to Mathews McKinnish, for the sum of £ 450 or thereabouts, with costs. That there was no Superior Court (182) holden for the county of Cumberland in the spring of that year, by reason of the indisposition of the late Judge Wright; and that he was advised the said judgment was irregular and ought to be set aside." A supersedeas was awarded, and at the next term of the court the judgment was set aside, and the plaintiffs therein appealed.
It cannot be seriously contended that the judgment in this case is regular and legal. What authority has the clerk to enter up judgment where there is no court? It is his business to record the proceedings of the court; but the rendering of a judgment is a judicial act, to be done by the court only. The judgment is irregular and must be set aside.