
    Hammer v. McConnel.
    Process against two, one not served, declaration against one. Appearance and plea "by one, verdict against both and judgment, may be amended at a subsequent term by striking out the name of defendant not served with process.
    This case came before the court upon three separate motions, made in the Supreme Court for Tuscarawas county, and. adjourned for decision to this court.
    The case was this: Hammer brought an action for goods sold and delivered to John and Alexander McConnel, as partners in trade — process issued against both, but as to John McConnel, was returned not found. The declaration was filed under the statute suggesting the return of non est as to John — Alexander appeared and pleaded to the action separately, and in the court of common pleas a verdict passed in his favor. The plaintiff appealed to the Supreme Court, where a verdict was found for the plaintiff. The verdict was returned as against both John and Alexander, and a joint judgment was rendered against both. At a subsequent term, the plaintiff moved for leave to amend the judgment by striking out the name of John McConnel. The defendant moved to set aside the verdict and judgment, as irregular, and award a venire facias de novo — and also, in the event this motion should be overruled, he moved for a writ of error coram nobis.
    
    *Wright, for the plaintiff, insisted :
    That the verdict and judgment being joint, was a mere clerical error, which might bo amended upon motion. He denied the power of the court to set aside a verdict and judgment, at a subsequent term, and award a venire facias cíe novo. He also argued that the Supreme Court, not being specially authorized by statute to award a writ of error coram nobis, could not legally issue a process of that character.
    Tappan, for the defendant, maintained:
    That the verdict of the jury being against both defendants, it was not a clerical error, and could not be amended as such. In support of the power of the court, at any time to set aside irregular proceedings, he cited the language of Justice Ashurst, in Rex v. Holt, 5 Term, 444, and Rex v. Teas, 11 East, 307.
   By the Court :

The verdict in this case is a substantial finding for the plaintiff. The issue was between the plaintiff and Alexander McConnel, and upon that issue alone the jury could decide. There is no difficulty in understanding how John McConnel was connected with the case, and it is perfectly easy to see how it happened that his name was included in the verdict. It was a mere formal error. When the clerk receives the verdict, it is always upon the terms, that the court may correct matter of form, not touching matter of substance.

The verdict against a party to the contract, but not a party to the suit, was an informality and nothing more. It was the duty of the clerk to record the verdict according to the parties at issue, and to have entered the judgment in the same way.

Had the mistake in the verdict been discovered as soon as the jury left the box, can there be any doubt but that the court would have corrected it, and directed a judgment conformable to such correction ? We think there can be none. As a mere clerical error, it is still amendable. Leave is accordingly given to make the amendment. This decision concludes the other two motions; they must of course be overruled. 
      
      NoTE by the Editor. — Amendments of verdicts and judgments. See also iii. 486; v. 227, 514; vi. 274; i. 375; ii. 246; viii. 405; ix. 131.
     