Opinion
August Term, 1849.
1. When the alteration of a writ, after bail has been given, changes the nature of the action, the bail is discharged.
2. But where in an action against two joint and several contractors, a nonsuit is entered, and afterwards the nonsuit is set aside as to one, and not as to the other, the bail of the one as to whom the nonsuit was set aside and a verdict and judgment subsequently rendered against him, is not discharged.
3. A judgment nunc pro tunc is a judgment of the term of the court at which the court making the amendment says it ought to have been rendered.
APPEAL from the Superior Court of Law of BURKE, at Fall Term, 1848, Manly, J., presiding.
This is a sci. fa. against the defendant as special bail of one McElrath. The following is the case agreed: In 1840 the plaintiff sued out his writ against J. J. McElrath and A. H. Erwin, and declared against them in assumpsit, as copartners. The writ was executed by the defendant, who was the sheriff of the county, and he became the bail of the defendants. The suit continued in court until the Fall Term, 1845, when the plaintiff was nonsuited, and the nonsuit being set aside as to McElrath, the suit was prosecuted against him and a verdict obtained at Spring Term, 1846. No formal judgment was entered up against McElrath until Spring Term, 1849, when the court, on motion, ordered a judgment to be entered in the case as of Spring Term, 1846. This order of the court was opposed by the counsel of the defendant. A fieri facias issued, returnable to Fall Term, 1846, against McElrath, and was returned nulla bona, and the sci. fa. was issued to fall term of that year. (56) A verdict and judgment were rendered for the plaintiff, and the defendant appealed.
N.W. Woodfin for plaintiff.
Bynum, T. R. Caldwell and Gaither for defendant.
On the part of the defendant it is urged that, by the nonsuit in the original suit, at the Fall Term, 1845, the case was out of court; and by setting aside the nonsuit as to the defendant McElrath and prosecuting the suit against him alone, the bail was discharged. The objection proceeds upon the ground that any alteration of a writ whereby the nature of the action is changed, after bail has been given, will discharge the bail. This is true, and for the reason that after the alteration the action ceases to be the one to which the bail agreed to answer, but the change must be one which alters the nature of the action. Bryan v. Bradley, 1 N.C. 177. Here the action continued the same, and the obligation of the defendant, as special bail for each defendant, continued the same. It is a mistake to suppose that the nonsuit so put the cause out of court as finally to discharge any of the parties. Upon setting it aside the case is reinstated and continues the same. The order made in setting aside the nonsuit is in effect the same as if it had been unconditional and the plaintiff had then entered a nol. pros. as to the defendant Erwin. This he certainly could have done without discharging the bail of McElrath.
In this State all contracts are joint and several, and an action can be maintained against the whole or any number of the joint contractors. And, in an action of assumpsit against two persons, the jury may render a verdict against one and in favor of another ( Jones v. Ross, 4 N.C. 335), just as in an action of tort. When, therefore, the nonsuit was set aside as to (57) Erwin alone, and the suit continued on the record against McElrath, it was in law the same action.
It is further objected that the time the sci. fa. issued no judgment had been rendered by the court on the verdict against McElrath. The case agreed shows that the record of Spring Term, 1846, was, at Spring Term, 1849, of the same court, amended by an order of court, directing a formal judgment to be entered on the verdict against McElarth. It has been repeatedly decided that any court possesses the power to amend its own records so as to make them conform to the truth, and that we have no right to interfere with its exercise. When so amended, it is the duty of the clerk in whose custody it is, in giving a transcript of it, to certify it as it is amended, as if it were originally full and complete, without noticing the order to amend. That order appears upon the records of the court at the term when made, if a different one, and is his authority for so altering the original.
We have nothing to do with the amending order, and cannot look behind the record as certified to us.
We see no error in the judgment below, and it must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Neil v. Childs, post, 198; Hamlin v. McNiel, post, 306; Jackson v. Hampton, post, 585; Pendleton v. Pendleton, 47 N.C. 137; Parsons v. McBride, 49 N.C. 100.
(58)