JANUARY TERM, 1847:
Henry W. Rhodes v. Benjamin Sherrod.
Where demurrers to pleas were sustained at one term of the court, but no entry made on the record, of the judgment on the demurrers ; and at a subsequent term, a judgment was entered on the demurrers, sustaining them, nunc pro tunc, on parol proof, that they had been sustained at the former term, and also by reference to the memoranda on the judge’s docket, which contained the same statement; whereupon the case was submitted to a jury, on issues joined, who rendered a verdict; it was held, that the judgment rendered, nunc pro tunc, was erroneous; that the judgment on the verdict, as well as on the demurrers, must be reversed, and the cause remanded for further proceedings, to commence at the pleadings.
Where a bill of exceptions, taken at one term of the court to an order entering a judgment, nunc pro tunc, sustaining demurrers to pleas, which demurrers had been argued and sustained at a former term, but no entry thereof made of record, recites the fact of the motion to enter the judgment, nunc pro tunc, and that it was granted, the judgment entered accordingly, and the exception taken thereto ; and the record contains an entry of judgment sustaining the demurrers at the term when the demurrers were actually sustained, the bill of exceptions will prevail over the entry in the record, and will be regarded as containing the true narration.
In error from the circuit court of Lowndes county; Hon. Francis M. Rodgers, judge.
Benjamin Sherrod sued Henry W. Rhodes, to the April term, 1844, of the circuit court, in an action of debt, on a writing obligatory, made by Rhodes and a number of others, for the payment of fifty thousand dollars, on which were various credits.
The defendant plead, in substance: 1. That the plaintiff and defendant were both members and stockholders of the Tus-cumbia, Courtlandt and Decatur Railroad Company, of the board of directors of which the plaintiff was president; and that by the false and fraudulent representations, by the plaintiff, of the prosperity of the company, he was induced to execute the bond to the president, individually, for a loan of the money for the *98company, on false pledges, made by the plaintiff and the company, of security to be given; and that, therefore, the bond was procured by fraud. 2. A plea that the bond was procured by fraud, and was, therefore, void, without any specification. 3. That the debt sued on was a partnership debt of the company, for which the plaintiff, under the charter of the company, was liable, in his private capacity, in proportion to the amount of his stock, and, therefore, could not sue. 4. That the bond sued on, was a partnership debt of the plaintiff, and the various makers of the bond, and that the defendant had paid his portion. 5. A plea, in substance, the same with the first. 6. That the money was borrowed for the company, and used by the company, of which the plaintiff was one, and the company had, at the time of the execution of the bond, agreed that it should be a debt of the company, and not of the members, individually, who had signed the bond. 7. Payment.
After setting forth these pleas, the record contains a demurrer to all but the last, with special causes set out, purporting to be filed at the April term, 1845. On the last plea, issue was taken.
The cause was continued until the October term, 1845, when the record recites, that the demurrers were sustained, except to the third plea, and were overruled as to that, upon which issue was taken, and a trial had; but the record omits to state what verdict the jury brought in, at that term.
At the October term, 1846, the plaintiff entered amotion, that !! an entry of judgment of the court, sustaining the demurrer of the plaintiff, to the first, second, fourth, fifth and sixth pleas of the defendant, by him pleaded, be made, because of the omission of the clerk to enter the same heretofore.” The court sustained the motion, and the defendant excepted. From the bill of exceptions it appears that the evidence on which the court sustained the motion was: 1. The oath of one of the counsel of the complainant, that Judge Bennett, when presiding at the October term, 1845, sustained the demurrers to the pleas, but that the clerk had neglected to make any entry of it; and 2. A memorandum in writing on the judge’s docket, as follows, to wit: *99“ Benjamin Sherrod v. Henry W. Rhodes, defendant, October, 1845. Demurrer sustained to, except as to third plea.”
This motion was made, while the cause was progressing on trial before the jury, and the exceptions were signed, before the jury retired from the bar. They found a verdict for the plaintiff of $>13,126 57, and the defendant sued out this writ of error.
Harris and Harrison, for plaintiff in error.
1. It is contended that there is error in the judgment, rendered upon the demurrer to the pleas.
There was a demurrer to six pleas. The rule, in such cases, is, that if either plea is good, the defendant is entitled to judgment. Cuyler v. Trustees of Rochester, 12 Wend. 165.
The judgment, however, is, that “the demurrer be sustained to all of said pleas, except the third ; that it be overruled as to that one, and the plaintiff be allowed to reply.”
We claim a final judgment in this court. It is the only one that can be rendered. It is not the decision itself, that we now complain of, but the improper judgment rendered upon it. If one plea is good, the legal consequence is, that the defendant is entitled to judgment. It is not a case in which, if the cause was remanded, leave could be granted, upon motion, for the party to withdraw the demurrer, and plead over. Five of the pleas are decided to be bad — to be no bar to the action — and how is the court below, in the exercise of a sound legal discretion, to permit such issues to be made up and tried ? In ordinary cases, where a demurrer to a single.plea has been overruled, the court has a discretion upon the subject, and the party cannot plead over without permission. But the rule never has been extended to cases like the present, but the judgment is always final.
Nor was there any application to withdraw the demurrer, in the court below, but, on the contrary, it stands in plaintiff’s favor, upon five of the pleas; and, on the other plea, he elected to avail himself of the privilege of replying thereto. It was a voluntary act, for he was not required to do so.
In the case of Willis & Conley v. Ives et al. 1 S. & M. 318, it is said: “ The court would, probably, have been justified in *100rendering final judgment, but did not do so; and it would be too rigid to say, that the plaintiffs waived the right, by complying with the interlocutory judgment of the court, unless it should also appear, that the judgment was given at their instance. If the defendants had complained of the judgment of respondeat ouster, we might have reversed on error brought by them; but then we would not have entered up a final judgment in their favor, without inquiring, whether we could properly do so on the demurrer.”
In the present case, the plaintiff in error was not only defendant in the court below, but this court can properly enter judgment final on the demurrer.
II. We insist that the first and fifth pleas are good. The demurrer is open to objection, if designed as a special one, for the. reason, that the causes are not stated explicitly and with certainty. It is not sufficient to say, that a plea is double, repugnant, uncertain, wants form, or the like ; but the demurrer must show in what particulars it is double, &c. I Wils. 219; 1 Salk. 219 ; 1 Saund. PI. and Ev. 498, 499 ; 2 Johns. 433 ; 1 S. & I. 523.
There is, however, a memorandum, made by the attorneys, (which is really no part of the demurrer or of the record,) that professes to give the “ causes drawn out at length.” They are, in truth, other and different causes. But the two pleas above specified are sufficient, in law, when tested by these. They are special pleas of fraud, and if the facts stated in them are true, constitute, in our opinion, a good bar to the action.
III. There is a “chasm,” in the record, which it seems to us, it will require some skill in “leaping the chasms,” to get over. It is a clear leap from the 15th day of October, 1845, to the 15th day of October, 1846. On the day first mentioned, the case was submitted to the jury, who retired to consider of their verdict, and they have never made known the result of their deliberations. What became of the jury, or the papers, is not a matter of judicial history. No verdict was rendered, or mistrial had. The case, we contend, was necessarily discontinued. There is no account of it in the record, until twelve months *101after the jury had retired, as aforesaid, when the attorneys for the plaintiff are found in the full tide of successful experiment, arguing a motion to enter up judgment nunc pro tunc upon the aforesaid demurrer to the first, second, fourth, fifth and" sixth pleas, whilst the cause was depending before another, jury. Kennon v. Bell, Minor’s Ala. R. 98; Mendenhall v. Smith, lb. 381; Johnson v. Ditty, 7 Yerg. 85.
IV. The bill of exceptions states the fact, as to the entry of the judgment nunc pro tunc, and that it was not only made whilst the case was before the jury, but that the evidence, upon which the motion was entertained, was the testimony of the attorney, and a memorandum of the former judge’s, on his docket of a previous term. From the transcript before the court, the record is contradictory, for the entry would seem to have been made at the proper time, although the motion and bill of exceptions assert, that such was not the fact. As there is no mention made in the motion or bill of exceptions of the third plea, and the leave given to plead over, it is probable, that the judgment was regularly entered, in due season. Russell 8f Wife v. McDougatt, 3 S. & M. 234, 248, and cases cited.
Mr. Justice ThacheR
delivered the opinion of the court.
This is an action of debt, instituted in the circuit court of Lowndes county. The plaintiff in error, the defendant below, filed seven special pleas in bar, to six of which, the plaintiff below demurred, and joined issue upon the seventh. The record exhibits, that, on the 13th day of October, 1845, an entry was made upon the minutes of the court, to the effect, that, upon argument of the plaintiff’s demurrers to the defendant’s pleas, it was ordered by the court, that the demurrers to the first, second, fourth, fifth and sixlh p'eas be sustained, and that the demurrer to the third plea be overruled, and the plaintiff be allowed to reply thereto. A replication, in short, to the third plea, seems to have been filed, and the case submitted to a jury, but no return of a verdict, by that jury, is found in the record. The record then shows, that upon the 15th day of October, 1846, a motion was made in the cause, and an order sus-*102taming it, to enter a judgment nunc pro tunc, which judgment sustained the demurrers of the plaintiff to the first, second, fourth, fifth and sixth pleas of the defendant, and which judgment had been omitted to be entered by the clerk, at the October term, 1845, of the court. To this order, a bill of exceptions is filed, setting out that the facts, respecting the judgment upon the demurrer, at the October term, 1845, were ascertained, by parol testimony, that such a judgment had been made by another judge, who then presided over said court, and had been omitted to be entered by the clerk of the court, and by a written memorandum upon the judge’s docket, as follows: “6147. Benjamin Sherrod v. Henry W. Rhodes, defendant, October, 1845. Demurrer sustained, except as to third plea.” The record finally shows a jury and verdict for plaintiff below.
The apparent inconsistency that exists in the record, is, we think, reconciled by the bill of exceptions. In order to explain a difficulty of this kind, we must take the bill of exceptions, as the criterion of that part of the record to which it relates. From this source, it is clear that the entry in relation to the disposal of the demurrers to the first, second, fourth, fifth and sixth pleas of the defendant, must have been made after the order sustaining the motion for judgment nunc pro tunc upon those demurrers. The entry, in the first part of the record, is the only entry, respecting the disposal of the demurrers, there being no actual entry of judgment upon the order of judgment nunc pro tunc, but a mere statement, by the clerk, that such a judgment is entered, in accordance with the' order. The first entry was, therefore, probably inserted in the original record, after, and in consequence of the order sustaining the motion for judgment nunc pro tunc. This shows, that the judgment upon the third plea was entered at the same time, as it iaembraced as part of the first entry, and is found nowhere else in the record.
The foregoing, being the proper view of the case, it becomes necessary only to add, that the notice allowing the entry of judgment nunc pro tunc, which judgment is found to have been made, by means of parol evidence, and a reference to the judg’s docket, has been held, by this court, to be erroneous.
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Dickson v. Hoff’s Adm’r. 3 How. 165; Russell & Wife v. McDougall, 3 S & M. 234; Daniel Boon, use &c. v. Joseph G. Boon, at this term.
The judgment is, therefore, reversed, and the cause remanded for further proceedings, commencing at the pleadings.