
    Dorsey v. Peirce et al.
    
    A judgment cannot be amended without notice to the opposite party.
    After'judgment and after a term has elapsed, the court has no authority to allow the sheriff to amend his return.
    ERROR from the circuit court of Carroll county.
    This was an action of assumpsit brought by Dorsey at the October term, 183S, against Newell and Peirce. The writ was returned by the sheriff “ executed,” and on the sscond day of the term judgment by defairlt was taken against both defendants.
    On the third of May, 1839, defendant Peirce sued out a writ of error coram nobis, to October term, 1839, upon affidavit that there was no service upon him of the original writ. At the last mentioned term, the court, on motion, permitted the sheriff to amend his return, so that it read “executed on Camp Newell,” and then ordered the clerk to amend the judgment so that it stood against Newell only.
    These orders of the court were assigned for error.
    Gibbs, for plaintiff in error.
    A party cannot have his rights and property disposed of without notice. Declaration of Rights, sec. 29.
    A writ of error coram nobis cannot issue without notice to the opposite party. Ferris v. Douglas, 20 Wendel’s Rep.
    An officer cannot be permitted to amend his return after the return term. Thatcher et al. v. Miller, 13 Mass. 270. 8 Mass. Rep. 240. 4 Randolph’s Rep. 161. 3 Fairfield’s Rep. 196. 3 Howard, 66. 1 Caines’ Rep. 57.
    A writ of error where a fact is in issue cannot be tried without a venire. 14 Johnson, 417.
   Mr. Justice Tuenek

delivered the opinion of the court:

Various errors are assigned in the record and proceedings in the court below.

There is no writ, declaration or pleadings set forth in the record.

There is a writ of error coram nobis, and the petition of Peirce alone, on which it was granted. But there is no citation or notice of that writ served on the plaintiff below. On its return, the judge allowed the sheriff to amend his return on the original writ, and then allowed an amendment of the original judgment to make it correspond with the return. Of these amendments Dorsey complains, and assigns errors in relation thereto.

The court below erred in sustaining a motion to amend the judgment, without notice to the plaintiff below, which according to the statute, should have been given.

The court would have been right in allowing the sheriff to amend his return, if it had been made before judgment, or on the return of the writ. But after the term had passed, the judgment was no longer under the control of that court, and the injured party’s remedy was by a writ of error to the Court of Appeals, if the error was such in reality as the petition, sets forth. But for the want of a full record of the case, we are not informed as to this matter.

The judgment must be reversed.  