Loomis v. Francis

ERROR TO SANGAMUN. Upon an application to amend the record of judgment, by making a new party, such party when brought into court, should be ruled to plead, before he is adjudged. Nor should the judgment be entered nunc pro tunc, so as to give it any retroactive effect.

This was an application to the Circuit Court of Sangamon county, to make one Thomas G. Taylor a party to a judgment, in the case of Josiah Francis, sheriff of Sangamon county, for the use of Charles R. Pierce, against William Loomis and the said Thomas G. Taylor, entered at August term, 1851, of the said court, so that the judgment should be against both, &c. This application was founded upon the affidavit of Pierce, stating that his attorney in the suit against Loomis and Taylor, had released Taylor from his liability, and taken judgment against Loomis only, without his consent or knowledge, and that he remained in ignorance that the judgment had been so taken, until a short time prior to the application to correct the judgment, nor until after two executions had been returned, “ no property found.” The affidavit also stated that the attorney who released Taylor was unmarried, was without means, and absent from the State, and that recourse to him would be useless. A counter affidavit was filed by Taylor. Proofs were taken by the court, Davis, Judge, presiding, at March term, 1855; when it was ordered, all objections to the form of the remedy sought by Francis for the use of Pierce, having been waived, that the judgment of August term, 1851, be so amended (nunc pro tunc() as that the name of Taylor should be inserted therein. To correct this order, Taylor sued out his writ of error and brings the case here.