Close v. Gillespey
New York Supreme Court
A JUDGMENT had been entered up, in this cause, on a warrant of attorney. The judgment was regularly signed and docketed ; but through mistake, the name of the defendant’s attorney was not signed to the plea, filed with the other papers, nor was his name inserted in the roll. Execution had been issued by the .plaintiff, and also by one Mancius, who had obtained a subsequent judgment against the defendant.
Read the full summary
A JUDGMENT had been entered up, in this cause, on a warrant of attorney. The judgment was regularly signed and docketed ; but through mistake, the name of the defendant’s attorney was not signed to the plea, filed with the other papers, nor was his name inserted in the roll. Execution had been issued by the .plaintiff, and also by one Mancius, who had obtained a subsequent judgment against the defendant. Both executions were delivered to the sheriff, and each claimed a preference ; but the plaintiff’s execution was first received by the sheriff. A motion was made, on behalf of the plaintiff,…
1Opinion of the CourtSpencer, J.
There can be no doubt that an amendment is proper, and ought to be granted, but whether nunc pro tunc, so as to give a a preference to the plaintiff’s execution, is the question.
*527In the case of Seaman and others v. Drake,* this court ordered an amendment to be made nunc pro tunc, in a judgment, after the lapse of several terms, where the clerk who taxed the costs, had neglected to sign the roll, he having regularly docketed the judgment, and this was against bail. It was done on the principle, that the omission proceeded from an officer of the court. So the court of K. B. in England, have…
2Cases cited1 opinion
- Seaman v. DrakeNew York Supreme Court · 1803
3Cited by25 opinions
- Esmond v. Van BenschotenNew York Supreme Court · 1852
- Comanche Mining Co. v. RumleyMontana Supreme Court · 1870
- Frederick v. Circuit JudgeMichigan Supreme Court · 1884
- Heidenheimer v. Cleveland & CameronCourt of Appeals of Texas · 1895
- Sedgwick v. DawkinsSupreme Court of Florida · 1877
20 more not listed; retrieve them via the Exa API.