Opinion
No. 29069.
January 5, 1931.
1. JUDGMENT.
After expiration of term at which judgment was rendered, court is without power to amend judgment, except upon notice to parties adversely affected (Hemingway's Code 1927, section 772).
2. JUDGMENT.
Generally, notice of motion to amend judgment is necessary, though court has inherent power to amend judgment to conform to facts.
APPEAL from circuit court of Calhoun county. HON. T.E. PEGRAM, Judge.
Stone Stone, of Coffeeville, for appellants.
It is fundamental that no judgment can be entered without notice.
Section 772, Hemingway's 1927 Code, and Sec. 1016 of the Code of 1906, expressly provides that the opposite parties shall have reasonable notice of application for the amendment, etc.
Wilson v. Hansboro, 99 Miss. 252, 54 So. 849, Anno. Cases 1913E. 345; Rowell v. Sandifer, 129 Miss. 167, 91 So. 899; Healy v. Just, 53 Miss. 547; Evans v. King-Peebles Auto Co., 135 Miss. 194, 99 So. 758; Anderson v. McInnis, 99 Miss. 826, 56 So. 170; Shirley v. Conway, 44 Miss. 434; Graves v. Fulton, 7 How. 592.
E.L. Lamar and W.J. Evans, both of Calhoun City, for appellee.
This case is exactly in point and is controlled by the case of Rowell Company v. Sandifer, 91 So. 899, and authorities therein cited on the question involved in this case. In those cases this court held that the power is inherent in every court of record and not derived from any statute, to strike out a judgment erroneously entered through mistake of the clerk, and substitute for it the judgment actually rendered and enunciated. And that this may be done at a subsequent term of the court. And this is exactly what the court below did in this case.
Lee sued the Tedfords in a justice of the peace court and recovered judgment there, from which the Tedfords appealed to the circuit court with Beckett and Countiss, sureties on their bond. In the circuit court there was entered what appeared to be an agreed judgment by which the Tedfords and the sureties on their appeal bond were taxed with the costs of the court, which judgment was rendered at the regular March, 1929, term of the court.
After this court had adjourned, and a year later, at the March, 1930, term of the court, a term having intervened, Lee filed his motion in the circuit court praying the court to amend the judgment so that a judgment for one hundred twenty dollars and costs be rendered against the Tedfords. Attention was called to an entry on the judge's docket, which read "Agreed Judgment one hundred twenty dollars." There was no process or notice served on the parties against whom the judgment was entered amending the judgment rendered at a former term. The judgment was amended in a material respect, and an appeal from that judgment is prosecuted here.
After the term of court has expired at which a judgment is rendered, the court is without power to amend that judgment, except upon notice to the parties adversely affected thereby. Section 772, Hemingway's Code 1927, section 1016, Code 1906, requires that notice shall be served on the opposite party in the effort to amend a judgment. If it be said that this section does not apply, but that the court has inherent power to amend its judgment to conform to the facts, yet it is the general rule that notice shall be given the opposite party of a motion to amend the judgment. See Forbes v. Navra, 63 Miss. 1; Cotten v. McGehee, 54 Miss. 621; Shirley v. Conway, 44 Miss. 434; 34 C.J., page 246, section 472.
Reversed and remanded.