Opinion
August Term, 1858.
An error in dismissing a suit for the supposed want of a prosecution bond, cannot, at a subsequent term, be taken advantage of by motion, but only by a writ of error.
THIS was a motion, heard before PERSON, Judge, at the last Spring Term of Macon Superior Court.
J. W. Woodfin, for the plaintiff.
Gaither, for the defendant.
The suit had been pending for two or three terms, and at Spring term, 1857, the defendant was put under a rule to give security for the prosecution of his suit on or before the second day of the next term, or it was to stand dismissed; at the next term it was ordered to be dismissed under the rule of the last term.
At this term, on motion to reinstate the cause on the docket, it was made to appear that a sufficient prosecution bond was given at the time the writ was issued, and was on file at fall term, 1857, when the cause was dismissed under the rule of the preceding term.
His Honor ordered the judgment of dismissal to be reversed, and the cause reinstated; from which order the defendant appealed.
We are of opinion that the error in dismissing the suit for the want of a prosecution bond, when, in fact, a sufficient bond was filed, cannot be taken advantage of by motion. The error of fact should be alleged by a writ of error.
Upon a careful examination of the cases, this seems to be a proper classification:
An interlocutory judgment, in favor of a plaintiff, may be amended, or set aside at any time before final judgment is entered, for the parties are still in court.
A judgment which is void, may be set aside and treated as a nullity, at any time; Pearson v. Nesbitt, 1 Dev. Rep. 315.
An office judgment (as it is termed), that is, a judgment entered without the concurrence of the court, either actual, or implied, may be set aside at any time, and treated as a nullity, Winslow v. Anderson, 3 Dev. and Bat. Rep. 10, because of irregularity.
In our case the judgment is not interlocutory; — nor is it void — nor is it irregular; but it is erroneous, because of a fact which was not presented to the Court, and of which it did not have cognizance. The only mode by which such an error can be corrected is by writ of error for matter of fact; in respect of which, there is a specific time allowed by the statute; whereas, a motion to vacate, or set aside a judgment, may be made at any time.
PER CURIAM. Judgment reversed.