King v. Burnham

The Superior Court has power, under its rules, upon petition of a party to an action pending therein, and after notice to the adverse party, to order the record of a former action between the same parties to be completed, and the judgment therein made up and entered; the judgment, when so recorded,«takes effect from the date of the original judgment; and it is within the discretion of the court to allow the plaintiff in the pending action,.in whose favor the original judgment was rendered, to file an amended declaration therein, counting upon that judgment.

Contract. Writ dated February 4, 1879. The declaration, as originally filed, was upon a promissory note for $130, dated September 3, 1863, signed by the defendant, and payable to ■ the plaintiff or order. Answer, the statute of limitations. At March term 1880, the plaintiff was allowed to file an amended declaration upon a judgment recovered on October 19, 1869, by the plaintiff against the defendant, in the Superior Court of this county, in the sum of $177.79, damages, and $14.48, costs. At the trial in the Superior Court, before Gardner, J., without a jury, the plaintiff put in an authenticated copy of a record of a judgment obtained by the plaintiff against the defendant, as stated in the declaration, on default, upon a promissory note of like tenor with the one declared on in this action. It appeared by the records of the court that the judgment in the former action was not made up or entered, for the reason that the note declared on was not filed in the clerk’s office within six months after judgment was ordered; that, in June 1879, the plaintiff brought a petition under the rules of the Superior Court, copies of which are printed in the margin,* setting forth the. facts in the former action, and the default of the defendant, and that the record in that action had not been completed on account of the note not having been filed with the clerk; and asking that the record might be fully completed and judgment made up and entered by the clerk on filing a copy of the note (the original being lost) with the clerk, first giving the bond required in such cases; that an order of notice, with the petition annexed, issued to the defendant by order of court, and was duly served on the defendant; and after hearing at December term 1879, the prayer of the petition was granted, a copy of the note was filed with the clerk, with a duly approved bond, and the record in the former action was completed and judgment made up and entered'in the manner aforesaid; that, thereupon, the plaintiff moved for leave to file an amended declaration in this action, declaring on said judgment, which motion, after hearing, the court allowed. The defendant asked the judge to rule that, at the time this action was begun, there was no judgment on which the plaintiff could maintain an action; and that the plaintiff could not recover on his amended declaration. But the judge refused so to rule; and ordered judgment for the plaintiff. The defendant alleged exceptions.