Res judicata.-Where a motion to set aside a judgment has been refused, a subsequent motion upon substantially the same grounds will not be entertained. Mabry v. Henry, 83-298.

Not a contempt.-The application to set aside a judgment under this section upon insufficient grounds, is not an act of contempt, which will authorize the court to imprison the applicant until he shall have paid the debt. Daniel v. Owen, 72-340.

Execution. The court has no power to amend an execution so as to divest the title acquired by an innocent purchaser without notice. Williams v. Sharpe, 70-582.

Leave to issue execution.-Where, upon service of a notice of a motion for leave to issue execution, the defendant told the sheriff he had a discharge in bankruptcy, and asked him to write the plaintiff about it, but took no further action, he will not be entitled to have leave to issue execution, granted by the clerk, vacated. Hiatt v. Waggoner, 82-173.

Supplementary proceedings. Where, by an order in supplementary proceedings, a debt due the wife is ordered to be applied to payment of a debt due by her husband, the wife is entitled to have such order set aside, she not having been a party when such order was made. Williams v. Green, 63-183.

Justice's judgment.-A justice's judgment docketed in the superior court, cannot be impeached, set aside or modified in the superior court, except upon a recordari first had. Cannon v. Parker, 81-320; Ledbetter v. Osborne, 66-379; Birdsey v. Harris, 68-92; Morris v. Rippy, 84-611. In discretion of judge to allow a new plea, or amendment of plea below, on appeals from justice. Hinton v. Deans, 75-18.

Clerk no jurisdiction.-The judge, and not the clerk of the superior court, has jurisdiction of an application for relief under this section. Griel v. Vernon, 65-76.

The clerk of the superior court cannot set aside a judgment in a special proceeding, for excusable negligence, under the provisions of 274 of The Code, but he can allow an amendment under the provisions of 273. Maxwell v. Blair, 95–317.

In the supreme court.-Although in terms this section applies only to the superior court, yet the spirit and equity of its provisions extend to the supreme court, and relief in like cases will be administered in cases pending in that court. When it appears, therefore, on a petition to rehear an appeal, which had been dismissed for want of an undertaking for the costs, that such undertaking was not filed from an excusable neglect of appellant, the judgment of dismissal will be set aside, and the case restored to the docket. Wade v. Newbern, 73-318. See, also,

Horne v. Horne, 75-10I.

A report of a referee made to the supreme court, and final judgment entered thereon, is not open to a motion at a subsequent term to correct an alleged error in the method of computing interest. The only remedy to correct an erroneous judgment is by petition to rehear filed in accordance with the rule. Garrett v. Love, 90-368.

The spirit and equity of this section apply to the supreme court, and the same relief will be administered there as in the superior court, in a proper case. Wiley v. Logan, 94-564.

It manifestly appearing that the supreme court, at a former term, determined to reverse a judgment of the court below, but inadvertently an order of affirmance was made at the foot of the opinion filed by one of

the justices, for the court, the court will strike out that order, and enter one of reversal. Cook v. Moore, 100-294.

Under the constitution of the state, the jurisdiction of the supreme court to review and revise its final judgments, is confined to the power to rehear, as regulated by the statute (The Code, 966; Rule 52), and to relieve a party from a judgment against him by his mistake, excusable neglect, or surprise. The Code, 274; Farrar v. Staton, 101-78.

Where it appeared, upon a motion made in the supreme court to set aside a judgment therein rendered, refusing to grant the writ of certiorari, that the facts upon which the motion was based were known, or might, with reasonable diligence, have been ascertained, upon the hearing of the petition for the certiorari, the motion to vacate was denied. Williamson v. Boykin, 104-100.

This mode of proceeding favored.-Application to a judge of a superior court, under this section, is preferable to a certiorari from the supreme court, when it can be employed for the same purpose. Watson v. Shields, 67-235.

The law favors the hearing and determination of cases on their merits. When, therefore, a party moved to set aside a judgment within a year after its rendition, and afterwards abandoned that for another proceeding, having in view the same relief, which was also in turn abandoned, the whole may be regarded as a continuation of the same proceeding. Howell v. Harrell, 71-161.

Judgment taken prior to act suspending the C. C. P.-Where, prior to the act suspending C. C. P., judgment was taken before the clerk for want of an answer, and defendant appealed, the judge had power to strike out such judgment and allow an answer or demurrer to be filed. Walston v. Bryan, 64-764.

See, also, notes to preceding section.

Sec, 275. When plaintiff ignorant of name of defendant. C. C. P., s. 134.

When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly.

Sec. 276. Errors or defects not substantial to be disregarded. R. C., c. 3, ss. 5,6. C. C. P., s. 135.

The court and the judge thereof shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

Substantial defects. -Defects in pleadings and proceedings not substantial will be disregarded. White v. Morris, 107-92.

Defect in name of party.-A defect in the name of a defendant in the summons is cured by a judgment by default rendered against him. It would be also cured by an appeal by defendant without having moved to dismiss. Clawson v. Wolf, 77-100.

A court, however, has no right to amend process returned at a former term, without notice to the persons whose rights are to be affected. Simpson v. Simpson, 64–427.

Where pleadings are reasonably certain.-Where the pleadings, and issues made by them, are reasonably certain and understood by the parties, exceptions thereto will be disregarded. Moore v. Edmiston, 70-510; Gorman v. Bellamy, 82-496.

Variance between summons and complaint.-It is error to dismiss a complaint because the defendants are summoned to answer the complaint of A and B, and the complaint is in the name of A, B and others. Wilson v. Moore, 72-558.

Where the summons indicates a different form of relief from that set out in the prayer of the complaint, the variance should be disregarded. Ibid.

Variance between allegation and proof.—No variance between the allegation in a pleading and the proof shall be deemed material unless it have actually misled the party. Gibbs v. Fuller, 66-116.

Where a complaint sets out a cause of action, which would have been in trover under the old practice, while the proof shows a claim in assumpsit, it is an immaterial variance and should be disregarded. The distinction between the forms of actions at law having been abolished, a party cannot be allowed to avail himself of an objection founded on them. Oates v. Kendall, 67–241.

Although the plaintiff's complaint may set out the facts and ask relief upon an action on a special contract, yet, upon a ruling of the court that he cannot recover upon the special contract, he is entitled to proceed with his case and recover upon the common counts in general assumpsit, without any amendment of the pleadings. Jones v. Mial, 82-252. Better to follow the statute. In all matters of procedure, it is always best to strictly follow all statutory requirements. Holly v. Perry, 94-30. See 269, 270, 271, ante, and the cases and notes under them. Sec. 277. Supplemental pleadings. C. C. P., s. 136.

The plaintiff and defendant respectively may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made, and either party may set up, by a supplemental pleading, the judgment or decree of any court of competent jurisdiction, rendered since the commencement of such action, determining the matter in controversy in said action, or any part thereof; and if said judgment be set up by the plaintiff, the same shall be without prejudice to any provisional

remedy theretofore issued or other proceedings had in said action on his behalf.

After case has been remanded. After the case has come back from the the appellate court, the lower court has power to permit supplemental pleadings. Holley v. Holley, 96-229.

When necessary.-A supplemental complaint, or answer, is required from new parties only when the previous record of the cause does not show how they are connected with the controversy or interested in its result; but where the death of the original party and the relationship of the new parties to him are ascertained, there seems to be no necessity for supplemental pleadings. Hughes v. Hodges, 94-56.

Cause of action accrued since suit begun.-A cause of action which occurred after an action was instituted, cannot be interjected in the pending action by a supplemental complaint, although it relates to the subject-matter of the pending action. Metcalf v. Guthrie, 94–447.

Sec. 278. Provisions of Code applicable to special proceedings.

The provisions of the Code of Civil Procedure are applicable to special proceedings, except as otherwise provided.

What are and what are not special proceedings.-Any proceeding that under the old mode was commenced by capias ad respondendum, or by a bill in equity for relief, is a "civil action"; any proceeding that,

under the old mode, might be commenced by petition, or motion upon notice, is a special proceeding." Tate v. Powe, 64-644.

A suit to recover possession of land is a civil action, and not a special proceeding. Therefore, the summons (by the act of 1868-'69, ch. 76,) is returnable to term time, and not before the clerk. Woodley v. Gilliam, 64-649.

See cases cited under 127, ante.

Summons and complaint required.-A special proceeding by a creditor against an executor or administrator for an account must be by summons and complaint in the first instance. Where the plaintiff in such proceedings files a memoranda of evidences of debt but no complaint, it is irregular. Isler v. Murphy, 76-52.

The clerk has jurisdiction. The probate court, and not the superior court at term, has jurisdiction to correct a mistake in partition proceedings in which there is no peculiar equitable ingredient. Wahab v. Smith, 82-229.

A proceeding to sell land for assets is essentially equitable, and the court has all the powers of a court of equity to accomplish its purpose. Hudson v. Coble, 97-260.

It seems that in a special proceeding under 1448, et seq., of The Code, the clerk has jurisdiction to render judgment, in favor of a creditor, against the personal representative personally, as well as in his representative capacity, if a devastavit is established. Hester v. Law

rence, 102-319.

In a special proceeding for partition, commenced before the clerk, it was alleged in the complaint that plaintiff was tenant in common with the defendant, the facts upon which the tenancy in common was claimed to exist being set out. The defendant denied the allegation of the complaint and claimed to be sole owner: Held, that the clerk had jurisdiction, and the refusal of the judge in term to dismiss the case was proper, whatever construction is to be placed upon ch. 276, Laws 1887. Goodman v. Sapp, 102-477:

The clerk has jurisdiction of a proceeding by a ward against his guardian for an account. McNeill v. Hodges, 105-52.

The charter of a railroad company provided that it might condemn land by a proceeding commenced before a court of record having common law jurisdiction: Held, that the clerk of a superior court has jurisdiction of such proceeding. Railroad v. Railroad, 106–16.

The clerk has not jurisdiction.-The probate court has no jurisdiction to provide for the payment of the debts of a lunatic contracted prior to the lunacy. Blake v. Respass, 77-173.

Nor to try the question whether such a debt is owing or not. Smith v. Pipkin, 76-569.

While the jurisdiction in dower is vested in the clerk, if an equitable element appears the superior court alone can take jurisdiction. Pollard v. Slaughter, 92-72.

The clerks of the superior courts have no equity jurisdiction in respect to partition, except that which is specially conferred by statute. The Code, 1903 and 1904; Bragg v. Lyon, 93-151.

Concurrent jurisdiction. The probate and superior courts have concurrent jurisdiction to settle estates. Haywood v. Haywood, 79-42; Britton v. Davidson, 79-423; Devereux v. Devereux, 81-12.

Also, over lunatics and their estates. Smith v. Pipkin, 79–569.

Also, to compel an administrator to account. Pegram v. Armstrong, 82-326.