McGriff v. Ried

Citations

• 37 Fla. 51

Syllabus

<p>1. The rule is settled in this State that a judgment rendered at one term may be amended nunc pro tunc at a subsequent term when from an inspection of the record in the case it is apparent that the proposed amendment would have been a part of the original judgment, or that the original judgment would have been in accordance therewith, had it not been for the inadvertance of the court, or an error or omission of the clerk.</p> <p>2. In this action of replevin, brought and determined before the adoption of the Revised Statutes, in which the property involved had been delivered to the defendant under a forthcoming bond, the verdict was: “We, the jury, find for the plaintiff, and assess damages at one hundred and forty dollars; so say we all.” The judgment was for the recovery of said damages and costs, and awarded execution accordingly. More than two years afterward the plaintiff moved the court to amend the judgment nunc pro tunc so as to make it also for the property itself, and awarding a writ of possession for the same: Held, That by the statute then in force the successful plaintiff in an action of replevin has his election to take a judgment for the value of the property and to sue out an execution thereon, or for the property itself and to sue out a writ of possession, but that he could not have both. The verdict and original judgment beirg clearly not for the property itself, we must presume in favor of the judgment, that the plaintiff exercised his legal right to take a judgment for the value of the property. He is bound by his election. The proposed amendment would make the judgment a double one, both for the value of the property and the possession of it. It would be illegal, not in accordance with the verdict or the statute then in force. The judgment does not appear to have been one in which there was any judicial inadvertence or clerical mistake. It was the proper judgment to have been entered in the case, and the motion to amend it should not have bee