Moye v. . Petway

¶1 At Spring Term, 1876, of the Superior Court of Wilson, before Kerr, J., the defendants moved to amend the records of Pall Term, 1867, of said Court by inserting nunc pro tunc in the record of this action the following : “ The judgment rendered in this action, stricken out and set aside, and that wherever said entry of judgment appears, *167 the same be stricken out. And it is considered that the said purported judgment is not the judgment of this Court, and the Clerk of this Court is ordered to erase said entry of judgment wherever the same may appear upon the records of said Court.”

¶2 The language of this motion cannot be commended as clear, nor can anything in the whole record sent up, except the Judge’s statement. Nevertheless, upon a favorable construction, the meaning of the words may be got at. The propriety of granting the motion depended upon a mere question of fact, to-wit: had a judgment been previously (at Fall Term, 1867,) rendered setting aside a former judgment against the defendants. If such judgment setting aside, &c., had been rendered, and by accident had not been recorded, or, if after being recorded, the record had been by accident lost or destroyed, every person interested in the record was entitled to have it restored to its former integrity. On this question the Judge heard the -evidence, and considered that a judgment setting aside, &c., liad been rendered' at Fall Term, 1867, and that the record of it had been lost or destroyed, and directed that the entry above quoted be made on the record as of Fall Term, 1867.

¶3 From this order the plaintiff appealed.

¶4 The plaintiff now contends that there was no evidence before the Judge to support his conclusion of fact. We are of opinion that the affidavits of Dortch, Strong and Petway were evidence which supported the finding of the Judge. Our opinion on this point disposes of every material question presented by the appeal, and the judgment below is, affirmed.

¶5 Pee Cukiam. Judgment below affirmed.