Cohen v. Rosenthal

<p>Abstract of the Decision.</p> <p>1. Judgment, § 256* — what error hy cleric in entering may he corrected at subsequent term. Where a clerk of court, after a case coming on for trial, after the vacation of a judgment hy confession, was dismissed for want of prosecution, made an entry in his minute book indicating a dismissal for want of prosecution, but later, in transcribing the order from the minute book to the “half sheet,” wrote that the order to vacate the judgment of the previous date was dismissed for want of prosecution, held that a clerical error was committed which might properly be corrected by order nunc pro tune at . a subsequent term.</p> <p>2. Judgment, § 263* — when minutes of clerk sufficient to enable court to determine what order was for purpose of correction of error. The minutes of a clerk “Dis. wt.' Pros. p. c.,” meaning, dismissed for want of prosecution at plaintiff’s costs, made at the time of the trial of an action on promissory notes, upon failure of either party to appear, a judgment by confession having been vacated at a previous time, held sufficient to determine what the order was so as to warrant the correction at a subsequent term of the clerical error of the clerk, in transcribing the order from the minute book to the “half sheet,” by writing that the order to vacate the judgment had been dismissed.</p> <p>3. Dismissal, nonsuit and Discontinuance, § 38* — when order dismissing case for want of prosecution is proper. Where a defendant has procured the vacation of a judgment by confession and plaintiff fails to appear at the time of trial, an order dismissing the case for want of prosecution is proper.</p> <p>4. Judgment, § 86* — what is effect of opening judgment by confession on burden of proof. Where a defendant has been let in to plead, upon the opening of a judgment by confession, the burden rests upon plaintiff to prove his case the same as if there had been no judgment by confession.</p>