
    Powell v. Watson.
    May, 1831.
    Practice — Common Order — Entry upon Office Judgment List — Case at Bar. — Capias ad respondendum, in debt on bond, returnable to August rules, being returned executed, and defendant not appearing, clerk enters the common order; at September rules, defendant appears, and puts in special bail, but does not plead; plaintiff insists that clerk shall enter a confirmation of the common order, so as to put the case on the office judgment list of the next term, which clerk refuses to do; at next term, court orders case tobe put on office judgment list, and then defendant puts in a plea to the action; and, at the ensuing term, there is a trial, verdict and judgment, for plaintiff:
    Same — Same—Same—Same—Qumre.—whether regular to order the case to be put on office judgment list?
    Same — Same—Same—Waiver of Objection. — But HELP, if not regular, defendant’s pleading to the action, was a waiver of objection to the regularity of the order.
    This was an action of debt on a bond for 814 dollars, brought by Watson against Powell in the circuit court of Amherst. The capias ad respondendum, upon which bail was required, was sued out in July, and made returnable to the rules to be held in the clerk’s office in August. The writ being duly executed on Powell, and Coleman taken as *his appearance bail, was returned to the August rules ; at which Watson filed his declaration ; and thereupon, the clerk entered the common order, that unless the defendant should appear at the next rule day, and plead to issue, judgment should be entered for the debt &c. against him and Coleman his appearance bail. At the September rules, Powell appeared, filed a recognizance of special bail entered into by Coleman, and craved oyer of the writ and the bond,- of which an entry was made ; but he put in no plea to the action ; and, therefore, Watson’s attorney insisted, that the clerk should enter a rule confirming the common order, so as to put the cause upon the list of office judgments at the next term of the court; which the clerk refused to do. At the next term, Watson, insisting that the clerk ought to have entered an office judgment at the September rules, upon the failure of Powell to plead according to the rule given him at the August rules, moved the court to order the cause to be put upon the list of office judgments of that term: Powell objected, that if the clerk had erred, the court could only remand the cause to the rules, with directions to the clerk to correct the error there : but the court disregarded the objection, and ordered the cause to be put on the list of office judgments of that term. Powell filed exceptions to this proceeding. And then, (special bail having been filed in the office as above mentioned) he pleaded payment; upon which the office judgment was set aside, and the cause continued for the trial of the issue made up upon the plea, until the next term : at which there was a trial, verdict and judgment for Watson. Powell applied to this court for a supersedeas to the proceedings and judgment, which was awarded.
    Taylor, for the plaintiff in error.
    Supposing the clerk erred in not entering an office judgment at the September rules, upon the failure of Powell to plead according to the rule given him at the August rules, 1 Rev. Code, ch. 128, § 72, 73, p. S07, yet that error of the clerk was nowise ^imputable as a fault to Powell, nor ought he to be at all prejudiced thereby. The statute, Id. § 77, p. 508, provides, that “the court shall have control over all proceedings in the office during the preceding vacation, may correct any mistakes or errors which may have happened therein,’and may, for good cause shewn, set aside any of the rules or proceedings, and make such order concerning the same as may be just and right.” Here, there was no rule or proceeding to be set aside ; the error complained of, was an ■ omission of the clerk to enter an office judgment at the September rules in the office, which could pnly be entered there ; the effect of that omission was, that the cause remained at the rules ; and the court in term could correct this error of omission, only by directing the clerk to enter the office judgment at the rules. The court could not enter an office judgment; it could not order a cause in which no office judgment had been entered, to stand upon the list of office judgments.
    Johnson, for the defendant in error.
    Watson being 'clearly entitled to demand an office judgment at the September rules, it was a palpable mistake or error in the clerk not to enter it. The court at the ensuing term, was certainly authorized to correct this mistake or error, and to make such order as was just and right; and the only effectual mode of correcting the error, the order which justice required, was to enter the office judgment nunc pro tunc ; or, which is the same thing, to consider the office judgment as having been entered at the rules, as it ought to have been, and to put the cause on the list of office judgments of the term. The effect of the clerk’s error was, that Powell gained the delay of a term ; the error could only be corrected by taking away that advantage from him. The method of correction adopted by the court, placed Watson in the situation in which he would have stood, if the clerk had not committed the error, and took from Powell, the advantage which that error gave him : the mode of correction which *Powell proposed, would have left him all the advantage arising from the error, andleft all the injustice done to Watson unredressed. But this point is now wholly immaterial: for, supposing the court erred in the method by which it intended to correct the proceedings at the rules, Powell himself cured that error, by pleading to the action in open court; the effect of which was to set aside all the proceeding's at the rules, and to put an end to all enquiry as to the regularity of those proceedings, and as to the proper method of correcting them if irregular. His defence was admitted, and fairly tried; he does not complain of any injustice in the trial and judgment.
    Taylor. The court, by ordering the cause to be put upon the list of office judgments, imposed upon him the alternative of pleading to the action, or of suffering judgment by default. He was compelled to plead ; and if it was irregular to compel him to plead, his pleading ought not to preclude him from complaining of this irregular compulsion.
    
      
       See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 438.
    
   GREEN, J.

The substance of the opinion and direction of the court, excepted to by Powell, was, that Watson was entitled to a confirmation of the common order at the rule day preceding the then term of the court, and that what had been done in the office should be corrected accordingly, so as to put the cause on the list of office judgments of that term. If this had been done; if the office judgment had been entered on the docket, and not set aside during the term, it would have been final: and if the court erred in correcting the rules so as to produce that result, it might have been reversed for that error, which in that case would have been the fottndation of the judgment. But the judgment appealed from, was not the consequence of, or in any degree affected by, that opinion and direction of the court: they were not in fact carried into effect. But if they had been, the voluntary plea of the defendant upon the merits, would have authorized and bound the court to set *aside the office judgment, and no question could afterwards be entertained as to the validity of the judgment so set aside. But no office judgment having in fact been entered on the docket, there was none to set aside. The interposition of the defendant’s plea obviated the necessity of entering- any office judgment, and was a waiver of all objections on his part to the former proceedings and order. The judgment appealed from, being clearly right in itself, must be affirmed, whether the opinion and direction of the court below in respect to the proceedings at rules, were right or wrong ; a question of which the court, therefore, waives the discussion.

Judgment affirmed.  