
    ANN CARNEY v. JOHN McDONALD & CO.
    Jackson,
    April Term, 1872.
    1. WRIT OP ERROR CORAM NOBIS. Declaration assigning errors is required.
    A petition for writ of error eoram nobis will be dismissed by-judgment by default and the supersedeas discharged, where the petitioner fails to file assignment of errors. (Pp. 236, 237). [See notes 9, 10, 13, 14 under sec. 4846 of the Code.]
    2. SAME.. Contradiction of record and absence of attorney, not sufficient grounds for.
    It is not competent to contradict the record as a ground for a writ of error corana nobis; nor is it a sufficient ground for such writ that the petitioner and his particular attorney were absent, merely without more, when the cause .was tried, the attorney being- engag-ed in causes in other courts. (Pp. 236, 237). [Cited as to the contradiction of the record in Bolling- v. Anderson, 1 Tenn. Chy., 135.]
    3. SAME. Writ of errors brings whole case to supreme court.
    A writ of error brings the whole record, including- a petition for writ of error coram nobis, and the proceedings thereon, into the supreme court, and all errors will be examined into and corrected by that court, either in the record before the writ of error coram nobis was sued out, or afterwards. (Pp. 237, 238). [See notes 17, 18 under see. 4846 of the Code.]
    4. JUDGMENTS AND DECREES. Essentials of order and record correcting clerical errors and mistakes in.
    -The jurisdiction.of courts to correct clerical errors and mistakes in their final judgments and decrees at former terms, upon motion, is statutory, and did not exist at common law. It is, therefore, essential to the validity of the order of correction, that it should show, either that the error is apparent on the record or in the papers, or on the minutes of the judge, and that the opposite party is duly notified. Tf these essential requisites do not appear in the record ordering- the correction, the order is a nullity. (P. 238).
    Cited and construed: Code (1858), secs. 2877, 2879; Shannon’s Code, secs. 4597, 4599.
    
      Writ of error from the circuit court of Shelby county. I. Hasley, J.
    Walter Coleman for plaintiff in error; George Gillam for defendant in error.
   Nicholson, C. J.,

delivered the opinion of the court:

Ann Camey sued W. W. Etter in the law court of Memphis, in replevin for seizing and detaining a carriage. The writ was returned executed on Etter, but that the carriage was not in his possession. Declaration was filed and plea of not guilty entered, John McDonald & Co>. being substituted as defendants in the place of Etter by consent of parties.

At the January term, 1871, the case was tried by a jury who rendered a verdict for plaintiff of $73.57, on which judgment was rendered. On this judgment execution issued.

At the May term, 1871, on motion and it appearing to the court that on the 17th of January, 1871, this cause came on for trial, and that a jury was regularly called and sworn to try said case, and after hearing the evidence; argument and charge of the court, said jury returned a verdict iu favor of the defendant in the sum of $73.57 against the plaintiff, but through error of the clerk, judgment was entered up in favor of the plaintiff and against the defendant in said sum of $73.57. It is ordered that the clerk be allowed to correct said entry of January 17th, 1871, etc., and that the execution issued thereon be quashed.

On the judgment so corrected an execution issued which was superseded by the fiat of J. E. K. Eay, judge of Bartlett circuit court, on the 15th of July, 1871. The supersedeas was granted in pursuance of the petition of Ann Camey for writ of error coram nobis and supersedeas. Petitioner states that she was ignorant of the rendition of the judgment until the execution was about being levied on her property; that she and her attorney were both absent when the canse was tried, her attorney being engaged in causes in other courts. • She states that the judgment against her was unjust, and that as she did not get possession of the carriage by her writ of replevin, the judgment ought only to have been for costs against her, whereas it was for $73.57 and costs.

The writ of error coram nobis was returnable to' the September term of the court. During that term, to-wit, on the 20th of October, 1871, judgment by default was taken against the petitioner for failing to file assignment of errors, and the petition dismissed, and the supersedeas discharged.

The transcript of the entire record being presented to one of the supreme judges, the writ of error was ordered to issue on the 27th of March, 1872, to bring up the case and the writ of supersedeas to supersede the execution issued upon the judgment rendered on dismissal of the writ of error coram nobis.

A motion is now made by the defendant to the. petition for writ of error coram nobis to- discharge the supersedeas. The writ of error brings the whole record up, and we are to examine into and correct all such errors as have occurred.

There was no error in the dismissal of the petition for writ of error coram nobis. The statement that the cause was tried and judgment rendered in the absence of petitioner’s attorney is insufficient, for two reasons. First, the record recited that the cause was tried in the presence of the attorneys of the parties. It is not competent to contradict the record as ground for- a writ of error co-ram nobis. [Cited on this point in Bolling v. Anderson, 1 Tenn. Chy., 135.] In the next place, petitioner shows that she was guilty of negligence in not having an attorney in attendance when her cause was tried. The petition for writ of error coram nobis was therefore properly dismissed upon the judgment by default, and would probably have been ■dismissed on motion, as no valid assignment of errors could have been made on the petition.

But upon examination of the judgment on which the execution issued, which was superseded upon petition for writ of error coram nobis and supersedeas, we find the fiat specifies the judgment as having been rendered on the 17th of January, 1871, for $73.57, in favor of John McDonald & Co., against Ann Carney. The question arises whether there is any such valid judgment. We have already seen that the judgment rendered on the 17th of January, 1871, as it appears in the record, was in favor of Ann Carney against John McDonald & Co., for $73.57. We have also seen that at the next teim of the court, on motion the clerk was directed to correct the entry made at the January term so as to make it read that John McDonald & Co. recover judgment against Ann Carney for $73.57. Did the court have the power to order such a correction of its records of a former term? And if so, does the record ordering the correction recite the facts necessary to give the court jurisdiction?

By sec. 2877 of the Code [Shannon’s Code, sec. 4597], the court may at any time within twelve months after final judgment, and while the cause is still in such court, amend any clerical error, mistake in the calculation of interest, or other mistake or omission in the judgment, where there is sufficient matter apparent on the record, the papers in the cause, or entries of a presiding judge to amend by. By sec. 2879 [Shannon’s Code, sec. 4599], ten days’ notice of the motion must be given if the cause has been finally disposed of.

It appears that the motion was made within twelve months and while the cause was still in court for the execution of the judgment. The court, therefore, had the power to order the correction of the clerical mistake. But in doing so the judge was in the exercise of a special jurisdiction, a jurisdiction which, by the principles of the common law, he could not have exercised. It was therefore essential to the validity of the order made, that it should have shown, either that the error was apparent on the record or in the papers or on the minutes of the judge. And in addition, it should appear that the opposite party was duly notified. None of these essential requisites appear in the record ordering the correction. We are, therefore, of opinion that this order was a nullity and. that the original entry on the record of January 17th, 1871, is still the valid judgment in the case, and that the order and judgment at the May term, 1871, quashing the execution which issued on the judgment of January 17th, 1871, in favor of Ann Carney against John McDonald & Co., was erroneous. It follows also that the judgment rendered at the September term, 1871, against Ann .Carney and her surety, on the dismissal of her petition for a writ of error and supersedeas, was erroneous and void, and that the writ of error to this court and the supersedeas were properly granted. The motion to discharge the supersedeas and dismiss the petition for writ of error is disallowed, and the judgments rendered at the May term, 1871, and at September term, 1871, are reversed and the judgment rendered at January term, 1871, left in force.  