#### Kelsey v. Berry.

(January Term, 1866.)

CohtiítüAitce — to allow amendment of record below. Where it appears that no judgment was entered of record in the court below, in a cause which is brought to this court by appeal, but that a verdict was returned by the jury, a continuance will be allowed to enable the appellant to apply to the court below to have the judgment entered as of the term at which the verdict was returned and the appeal granted.

Bebby sued Kelsey "before a justice of the peace; an appeal was taken to the Circuit Court of Morgan county, where a trial was had by a jury, and a verdict returned in favor of the plaintiff, and his damages assessed at $67.60. The defendant thereupon moved for a new trial, which was denied, and he then prayed an appeal to the Supreme Court. That appeal was perfected by the filing of the proper bond, and a transcript of the record was filed in this court.

At the first term the appellant entered his motion for a continuance of the cause, upon the following grounds: That, while the bill of exceptions recites that a final judgment was rendered in the court below, yet, as a matter of fact, by clerical omission, such a judgment was not rendered. An affidavit was filed in support of the motion, setting forth the fact of the omission to enter the judgment in the court below.

The object of the appellant in asking a continuance was, that he might be enabled to apply to the Circuit Court at the next term thereof, to have a judgment entered nunc pro tune, as of the term at which the appeal was taken.

Per Curiam :

The cause will be continued, that the appellant may have an opportunity to apply to the court below to have the judgment entered as of the term at which the verdict was returned and the appeal taken.

Continuance granted.