{ "id": 8683243, "name": "THOMAS D. WOLFE v. JOHN N. DAVIS, Adm'r., &c.", "name_abbreviation": "Wolfe v. Davis", "decision_date": "1876-01", "docket_number": "", "first_page": "597", "last_page": "599", "citations": [ { "type": "official", "cite": "74 N.C. 597" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [], "analysis": { "cardinality": 339, "char_count": 5508, "ocr_confidence": 0.414, "pagerank": { "raw": 8.562140254214802e-07, "percentile": 0.9767177545872365 }, "sha256": "3c5d5dc19b042adececed50613657341c7c3f686812fa7c023dd89377e5cc4b7", "simhash": "1:d5bbd30add5c73c0", "word_count": 971 }, "last_updated": "2023-07-14T21:08:39.099656+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS D. WOLFE v. JOHN N. DAVIS, Adm\u2019r., &c." ], "opinions": [ { "text": "Reade, J.\nA judgment, however err/wem/e, rendered at one term, cannot be set aside at a subsequent term. But a judgment irregular, rendered at one term may be set aside at a subsequent term. (We are not speaking of the power under the Code of Civil Procedure to vacate a judgment within a year for mistake, &c., which is not applicable to our case.) An erroneous judgment is one rendered according to the course and practice of the courts, but contrary to law; as where it is for one party, when it ought to be for the other; or for two little, or too much. An irregular judgment is one contrary to the course and practice of the courts; as judgment without service of process.\nIn our case, the judgment against the defendant at Fall Term, 1869, was irregular, because there stood his plea of \u201c fully administered\u201d undisposed of. And therefore it may be set aside, Cowles v. Hayes. 69 N. C. Rep., 406. And his Honor erred in refusing to set it aside.\nIn granting the motion of the plaintiff to amend the record of Fall Term, 1869, by entering a judgment- guarni\u00f3, mmo pro tune, his Honor seems to have been of the opinion that the ,power to amend, embraces something more than simply making the record speak the truth \u2014 not only what was done, but what ought to hove bam done. But that is error. And as there was not in fact any judgment gaomio rendered at Fall Term, 1869, it would be improper to make the record say that there was.\nThere is error. This will be certified.\nPeb Cubiam. Judgment accordingly.", "type": "majority", "author": "Reade, J." } ], "attorneys": [ "Battle, Battle cfi Mordecai, for the appellant.", "Wilson efe Son, contra." ], "corrections": "", "head_matter": "THOMAS D. WOLFE v. JOHN N. DAVIS, Adm\u2019r., &c.\nAn irregular judgment rendered at one term may be set aside at a subsequent term, independent of the provisions of the O. O. P.; but an erroneous judgment cannot be set aside at a subsequ nt term.\nAn erroneous judgment is one rendered according to the course and practice of the court, but contrary to law. An irregular judgment is one rendered contrary to the course and practice of the courts, as a judgment without service of process.\nThe power of amendment extends only so far as to make the record speak the truth; and the record cannot be so amended, as to show what ought to have been done, but only what was done.\n(Cowles, Adm\u2019r., v. Hayes, 69 N. C, Hep 406, cited and approved.)\nMotioN in the cause, heard before Button, Jat Spring Term, 1875, of Union Superior Court.\nThe plaintiff held a note upon both of the testators of the defendant, given during the late war, and payable in Confederate money. Both of the testators died during the war, leaving each a last will and testament, which have been duly proved in Union county. The defendant Cureton qualified as the executor of W. J. Cureton, and the defendant Yarboro qualified as the executrix of G-. W. Yarboro.\nThe plaintiff instituted an action against the defendant at Fall Term, 1867, of Union Superior Court.\nThe case came on for trial at Fall Term, 1869, being No. 32, of the civil issue docket of that term. The only plea relied on was \u201cFully administered.\u201d No jury was empan-nelled, but judgment was entered up as follows: \u201cJudgment according to note, subject to scale, and subject to the same order as in No. 1.\u201d The case N\u00f3. 1, referred to, was a case entitled, I). A. Covington v. Hnupton Iluntly and EUs->n Huntley, Executors of Thomas Ilnntley, in which case at Fall Term, 1868, the following entries appear:\n\u201c General issue; specially, the executors of Thomas Huntley plead; Former judgment of debts of equal dignity before notice; Retainer ; Fully administered ; Property sold by authority of Act of Assembly; and bonds and notes not yet collected.\nJudgment according to note filed.\nIt is ordered by the court that no execution issue against the defendants Ellison and John Huntley, Executors of Thos. Huntley, deceased, until further proceedings are had before \u25a0the clerk to ascertain the state of the assets of their testator.\u201d\nIt is stated by way of explanation of the judgment and order in No. 1, that the plea of \u201c general issue \u201d was not relied on, but only the protecting pleas of the executors and the \u25a0order was made by the court under the idea that the Act of 1868-69, relating to estates of deceased persons was applicable to administrations granted before its passage. The effect of the judgment was merely to ascertain the debt, leaving the question of assets to be determined thereafter before the clerk. The course adopted in No. 1, was followed as a precedent, hence the reference thereto.\nIn 1870, upon proceedings properly instituted, in the Probate Court of Union county Cureton was removed from his office as executor and John N. Davis, the largest creditor of the testator, was appointed administrator tie bonis non with the will annexed of W. J. Cureton, deceased. And Davis, as administrator