#### Kerr and Bell, Plaintiffs in Error, v. William B. Whiteside, Defendant in Error.

ERROR TO MADISON.

A judgment by default set aside, after the term at which the judgment was rendered. (1)

A sheriff's return contradicted by his own affidavit and that of the defendant. (2)

Upon a division of the court, the judgment below is affirmed.

The plaintiffs in error brought their action on the case in the Madison circuit court against the defendant in error, for*391mer sheriff of said county, for a false return upon an execution in favor of the plaintiff's against one Joseph Meacham. At the March term, 1824, the defendant’s default was entered, the process against him being returned served, and a jury of inquiry impanneled, who assessed the plaintiff’s damages to $517 81-100, for which the court rendered judgment. At the March term, 1825, the defendant moved the court to set aside the judgment by default, on an affidavit of merits. The affidavit also stated that he had not been summoned to appear, and had no knowledge that a suit was pending. The defendant also produced the affidavit of the sheriff of the county, as to the service of the summons, from which it appeared, together with his own affidavit, that the defendant did not know that he had been served with process. This motion was continued until the August term, 1826, when the court set aside the judgment by default, and the cause was continued from term to term, until the July term, 1827, when the defendant pleaded not guilty; and upon the plaintiffs being called, they made default, a nonsuit entered against them, and a judgment rendered for the defendant for the costs.

The plaintiffs sued out a writ of error, and assigned for error, 1st, that the court below erred in setting aside the judgment by default; 2d, because they received the affidavit of the sheriff, contradicting his return of service on the defendant; 3d, because the court erred in receiving the defendant’s affidavit, contradicting the sheriff’s return of service on the defendant; 4th, because the court set aside a regular judgment, and regularly obtained, at a term subsequent to the term at which it was obtained.

Cowles, for plaintiffs in error,

in support of the errors assigned, cited the following authorities: 6 Mass. Rep., 325. 4 ib., 478. 10 ib., 313. 1 Peters’ Rep., 155. Serg. Cons. Law, 382-3. 1 Tidd’s Practice, 508. 2 Dunlap’s Prac., 764-6. 1 Dunl., 321-2. Ib., 378-80.

Semple, contra,

made the following points:

Where any error has been committed by the officers of the court, or gentlemen of the bar, it may be corrected on motion, at a succeeding term of the court. 1 Hen. and Munf., 204. 1 Salk., 50, in note.

In civil cases, a special verdict may be corrected by notes of counsel, after a writ of error brought. 1 Salk., 47, and cases there cited. A judgment may be amended after the term at which it is signed, and even after error brought, and in nullo est erratum pleaded. 2 Arch. Prac., 276, and cases there cited.

*392A judgment by default can be set aside after a fieri facias has issued. 3 Salk., 224.

This motion is in the nature of a writ of error coram vobis; or an audita querela. 1 Bac. Ab., 194. 2 ib., 215. 1 Strange, 606-690, and cases there cited. 2 Wash., 135. 4 Munf., 377.

(1)

See note, Morgan v. Hays, ante, 126.

In Garner v. Crenshaw, 1 Scam., 143, the court held that an application to set aside a default is addressed to the sound discretion of the court, and no writ of error will lie to correct its exercise.

It is too late to make an application to set aside a default after one term of the court has intervened between-the term at which the default was taken, and that at which the motion was made. Ibid.

(2)

There is great contrariety in the decisions of the different states, on the question whether the return of an officer is conclusive, or whether it may be shown by a party interested to be false. In the following cases, it has been held to be conclusive: Hawks v. Baldwin, Brayt., 85. Purrington v. Loring, 7 Mass., 388. Wilson v. Loring, id., 392. Bots v. Burnell, 11 id., 163. Boston v. Tileston, id., 468. Wellington v. Gale, 13 id., 483. Lawrence v. Pond, 17 id., 433. Whitaker v. Sumner, 7 Pickering, 551, 555. Diller v. Roberts, 13 S. and R., 60. Stinson v. Snow, 1 Fairf., 263. Lewis v. Blair, 1 N. Hamp., 68. Henry v. Stone, 2 Rand., 455. Zion’s Church v. St. Peter’s Church, 5 Watts and Serg., 215. Gardner v. Small, 2 Harr., 162. Rose v. Ford, 2 Pike, 26. While in the following cases it has been held not to be conclusive: Butts v. Francis, 4 Conn., 424. Watson v. Watson, 6 id., 334. Cunningham v. Mitchell, 4 Rand., 189. Chapman v. Cumming, 2 Harr., 11. And in our own state they have lately held it was only prima facie evidence, and may be questioned by plea in abatement. Mineral Point Railroad Co. v. Keep, 22 Ill., 9. Owens v. Ranstead, id., 161.

But this is understood as applying only to the parties to the suit. It would not be applicable in a proceeding against the officer for a false return, nor between persons not parties to the suit; then it would never be held more than prima facie evidence.

Lockwood, J.,

delivered the opinion of the Cowrt. In this case, the court are equally divided in opinion, and therefore the judgment of the court below is affirmed, (a)

Judgment affirmed.

(a)

Whenever the supreme court shall be equally divided in opinion on hearing an appeal or writ of error, the judgment of the court below shall stand affirmed. Rev. Laws of 1827, p. 319, sec. 36.