The opinion of the Court was delivered at the ensuing June term, in this county, by
Parris J.The first section of the fourth article of the constitution of the United States provides, “ That full faith “ and credit shall be given, in each State, to the public acts, “ records, and judicial proceedings of every other State. And “ the Congress may, by general laws, prescribe the manner in “ which such acts, records and proceedings shall be proved, “ and the eiiect thereof.” In pursuance of this power, an act was passed prescribing the mode of proof, and declaring “ That “ the said records and judicial proceedings, authenticated as “ aforesaid, shall have such faith and credit given to them, in e: every court within the United States, as they have by law or “ usage in the courts of the State from whence the said records “ are or shall be taken.”
The construction of these constitutional and statute provisions has been the subject of consideration in the highest courts of several of the States, as well as the Supreme Court of the United States; and, although the language is general and might *284apply to all judicial proceedings, of however unique or informal character, yet, the better opinion seems to be, that the judicial proceedings of courts in the several States are not entitled, under the provisions aforesaid, to this faith and credit in other States, unless the court had jurisdiction of the subject matter of adjudication ; as where the defendant had been a party to the suit by an actual appearance and defence, or at least, by having been duly served with process, when within the jurisdiction of the court which rendered the judgment.
The case at bar is debt on a judgment rendered by the Superior Court of the State of Georgia; — to which the defendant has pleaded nul tiel record. The plaintiffs adduced in evidence an exemplification of the records of said court duly certified, containing a judgment corresponding with that declared on.
From the whole record it appears, that the plaintiffs originally declared in assumpsit against the defendant and one Aijak Fislce, as late partners under the firm of E. Williams Co.; —■ that the usual process was issued thereon requiring the defendants to appear and answer, but that the service was made on Williams only,-the other defendant not being in the country; — that Williams appeared by his attorney and pleaded to the suit, but no appearance was ever entered for Fislce, or any notice taken of him, as a party, in the course of the trial. The issue made up between the plaintiffs and Williams was put to a jury, who returned their verdict in favour of the plaintiffs, and the judgment now declared upon was rendered upon that verdict. If the case stopped here there could be no doubt of the plaintiffs’ right to recover. It would clearly fall within the cases of Bissell v. Briggs, 9 Mass. 462, and Borden v. Fitch, 15 Johns. 121.
But the record shews that the judgment was originally entered up against both Williams and Fislce, and that subsequently, on motion of the plaintiff, and after notice to Williams’ attorney, who originally appeared in defence of the suit, the judgment was amended and entered up against 'Williams alone. For this reason, as the defendant contends, the judgment has lost its conclusive character, and is not to be received in the' *285courts of this State, as entitled to full faith and credit under the constitution and law of the United States. If the suit had been originally prosecuted in the courts of this State, what should have been the course of proceeding in order to have secured the plaintiffs a judgment of such incontrovertible verity, as to insure its reception as conclusive evidence in the courts of the other States in this Union ?
The plaintiff has a demand, arising out of a partnership transaction, against two or more, who are jointly liable. He brings his action against them all, and if some of them reside without the jurisdiction of the court, having no usual place of abode within the State at which a summons may be left, nor any property liable to attachment, he causes his writ to be served only on the defendants within the State, and if he sustain his action, he must take his judgment only against those who were served with the process ; he can have it against no other. Tappan v. Bruen, 5 Mass. 196. Even where the action was upon a bond, and the officer making the service certified that one of the defendants had no last and usual place of abode in his county, a motion to dismiss the action was overruled and the court directed it to proceed. Call v. Hagger, 8 Mass. 423. This has been the immemorial practice in Massachusetts, and has been continued by the courts in this State, without any inconvenience or injustice to the defendants. For if all the debtors are included in the process and judgment, the creditor may satisfy his execution out of the estate of whichever he pleases. If, therefore, the plaintiffs had prosecuted their suit in Georgia, with reference and according to the law of this State and the practice of our courts, ho would have proceeded in issuing his process precisely as he has; he would have declared against both Williams and Fiske, and if the officer had returned that Fislce was not within his jurisdiction, the suit would have proceeded against the defendant only, who was served with the process. It did so proceed. To this course the defendant assented by pleading the general issue, thereby waiving all cause of abatement, if he had any. This issue, made up between the plaintiffs and defendant, was put to the jury, and their verdict returned thereon. The judgment should have followed *286the issue and verdict. Thus far there was no irregularity in the proceedings. They were substantially such as would have been had in a like case under our laws and practice. But, by a paper in the record, it appears that the judgment was originally entered up against both defendants, and subsequently amended. It is very clear that the amended judgment is the one that the Court should have rendered upon the verdict, and the only one they could legally render upon the whole case, according to the course of procedure at common law. By the amendment, a mistake, which was made either by the clerk or attorney, has been corrected. It is not perceived that the defendant can suffer injury by this amendment, or any inconvenience, other than what he would have been subjected to, if the proper judgment had been originally rendered. Still, if it be such an irregularity as to destroy the conclusive character of the judgment, he has a right to avail himself of it.
It was urged upon us, in argument by the plaintiffs’ counsel, that, under the law of the United States, we are to give the same force to this judgment, as would be given to it by the courts of Georgia, and that we are not to inquire whether the court from which the record comes had or had not the right to alter their record and their judgment; — and the cases of Mills v. Duryee, 7 Cranch, 481, and Hampton v. McConnel, 3 Wheat. 234, were relied upon as authorities. To a certain extent, we admit this position to be sound. But suppose the Superior Court of Georgia should undertake to amend the record of a judgment by adding the name of an entire stranger, as defendant, one who neither resided himself, or had any property within the State ; —■ who had no notice of the suit, and had never submitted to the jurisdiction of the court. Could we be called upon to enforce such a judgment against the new party ? — should we listen to the suggestion that the judgment was binding in Georgia, because the highest court of judicature there had so adjudged it, and that therefore, under the law of the United States, it was binding here, and in every other State in the Union.
Any court would be slow to believe that the constitution and law of the United States imposed upon the State judiciaries an *287obligation so dangerous in its consequences, so directly at war with fundamental principles; or that the very respectable tribunal, which decided Mills v. Duryee, and Hampton v.McConnel, ever contemplated such a case as falling within the principles of these decisions.
These cases required no such construction. In both of them the defendants were within the jurisdiction of the courts whose judgments were questioned, had notice to appear, and did appear and made defence. The language of the opinion delivered by the court must be taken in reference to the facts in the case decided, and the particular question under consideration. In the case supposed, we would not hesitate to pronounce tho judgment utterly void; a mere nullity; an attempt to subvert the first principles of justice, and not deserving tho name of a judgment: and the power of this Court would be invoked in vain to carry it into execution. But the exemplification of the record before us presents a very different state of facts. The defendant was within the State when the jurisdiction of the court attached ; had personal notice of the suit; appeared, defended, went to trial, and a verdict was found against him, which rendered him individually liable for the whole sum. No appearance of unfairness in the record ; none suggested in the argument. The defendant is not injured by the amendment. If the judgment had remained as originally entered, he would have been liable for the whole, if that judgment had been valid, as a joint judgment may be collected of either of the judgment debtors, but as it was rendered, if the plaintiffs had enforced payment of the defendant, he could not have used the judgment as evidence against Fiske in a suit for contribution. True, if the judgment had been properly rendered against Fiske, the record would be, prima facie, evidence of his legal liability to contribute ; but when the very record would shew that Fiske was not an inhabitant of Georgia, had never been served with notice of the suit, nor submitted himself to the jurisdiction of the court by appearing or making defence, the judgment, as it regards him, becomes a nullity, and cannot have any effect as evidence against him. — The defendant, then, loses none of his rights against Fiske in consequence of the amendment; — *288neither are they in any way impaired or rendered more difficult to be enforced. If the debt be one for which Fiske is legally bound to contribute, the defendant has his remedy as perfectly under the amended judgment, as he would have had under that first entered up.
Whether a court has the power to order an amendment of the record of a judgment at a subsequent term, is a question upon which there are many decisions, both in the American and English Reports. In Cradock v. Ratford, 4 Mod. 371, an application was made to amend a judgment which had been signed twenty years. On its revival by scire facias, it appeared that the judgment had been originally entered up, “ that the aforesaid Thomas might recover,” instead of “ the aforesaid Arthur.” The court was moved that the roll might be brought in and amended, it being only the fault of the clerk. — The defendant’s counsel urged that it was not amendable, being an error in judgment, which must be considered as an act of the court, and not of the clerk. But the court said, these amendments have frequently been made, and they directed the amendment accordingly. In Hanckford v. Mead, 12 Mod. 384, a similar amendment of judgment was ordered, and Gould J. said, he remembered a case where the like fact was amended, on motion after twenty years; — probably referring to Cradock v. Ratford. Short v. Coffin, 5 Burr. 2730, was an action against an executor. The judgment was rendered by mistake, de bonis propriis, and upon a motion for leave to amend by making it de bonis testatoris, the court were of opinion that the amendment ought to be made, it not being an error in point of law, but a mere mistake of the clerk. In Smith v. Fuller, 2 Str. 786, the defendant was found not guilty as to part, but no judgment was rendered for him. The court ordered the record to be amended by the verdict, and the judgment to be entered, even after error brought, and the record removed, and the want of judgment objected for error. Com. Dig. Amendment, R.
In Atkins v. Sawyer, 1 Pick. 351, the court directed that a judgment entered against A. as administrator, instead of against the goods and estate of the intestate might be amended by another part of the record, upon motion. — In Close v. *289Gillespie, 3 Johns. 518, the court permitted an amendment to be made, nunc pro tunc, though a subsequent judgment had been entered up against the defendant, on which a preference was claimed on account of the defect in the first judgment. Spencer J. in delivering the opinion of the court, says, “ There “ can be no doubt but an amendment is proper and ought to “ be granted. The court of K. J3. in England have permitted amendments rendered necessary by the mistake of one of “ their attornies. — I cannot discover any difference as to “ allowing amendments, whether the mistake has happened “ through the omission of an attorney, or by that of a clerk. “ Both are equally officers of the court.” — In the Bank of Newburgh v. Seymour, 14 Johns. 219, the Supreme Court of New-York permitted the record of a judgment to be amended by adding the name of a defendant. — The plaintiff moved for leave to amend the record of the judgment, by inserting the words “ and Lemuel Smith,” after the words “ Wright Seymour,” and by adding the letter s to the word defendant, wherever it occurred in the record, and that the judgment be entered nunc pro tunc against Smith. — The plaintiff’s attorney read an affidavit stating that the omission of Lemuel Smith, in making up the judgment, was by mistake of a clerk in his office. The court granted the rale, saving to all persons the rights they might have, bona fide, acquired, either in the real or personal estate of Smith from the time the judgment was rendered against Seymour, until the time of granting the amendment inserting Smith. In Mechanics’ Bank v. Minthorne, 19 Johns. 244, the clerk made a mistake in assessing damages on a promissory note, which was not discovered until after the judgment was entered up, and the defendant had paid the amount of the judgment to the plaintiff's attorney, and satisfaction thereof had been entered. The court, at a subsequent term, ordered the entry of satisfaction, and all the proceedings in the cause, after interlocutory judgment to be vacated, and the clerk’s assessment of damages, the record of the judgment, and the satisfaction thereof to be annulled and cancelled, and the damages to be re-assessed by the clerk. — See also Chichester v. Cande, 3 Cowen’s R. 39, and Hart v. Reynolds, ibid. 42, note, *290where an amendment nunc pro tunc was granted after a lapse of more than six years subsequent to the entering up the original judgment. In Hammer v. McConnel, 2 Hammond’s Rep. 31, Hammer brought an action for goods sold and delivered to J. fy A. McConnel, as partners in trade; — process issued against both, but as to John, was returned not found. Alexander appeared and pleaded to the action separately. The ver- ' diet was returned as against both, and a joint judgment was rendered thereon. At a subsequent term, the plaintiff moved .for leave to amend the judgment by striking out the name of John. 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. — The court say the verdict in this case is a substantial finding for the plaintiff". The issue was between the ■ plaintiff and Alexander, and upon that issue alone the jury could decide. There is no difficulty in understanding how John 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. 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. As a mere clerical error, it is still amendable. The amendment was accordingly allowed. In Crofton v.Ilsley, 6 Greenl. 48, this Court permitted the record of a judgment to be amended, while an action of debt was pending on the judgment, whereby the action was wholly defeated.
These are strong cases, in support of the decision of the Superior Court of Georgia. —• In the argument of the case at bar, it was urged by the defendant’s counsel, that the first judgment was entered up erroneously by the mistake of the plaintiffs’ attorney, who, according to the course of proceedings in Georgia, is required to sign the judgment; and that the court has no power to grant amendments, except to heal the mistakes of their clerk. Whether this was the mistake of the clerk or attorney we are not informed, but if of the latter, the cases from the New-Yorh reports are directly applicable and justify the amendment. Wherever the error is in the court, as a matter of judgment or express direction, it cannot be amended on motion; *291the law has pointed out another course, and that must be pursued. But whenever the judgment is erroneously entered up, by the mistake of the clerk or other officers of the court, it seems to be well settled by the enlightened judiciary of JSlewYork, that it can be corrected on motion, if there be any thing on the record by which the amendment can be made. There was no difficulty on this point in the case before us. The whole process shews that the judgment should have been against Williams only.
We are not called upon to decide whether we should have granted such a motion, or have turned the party round to another remedy. All that is now required of us, is to determine whether the proceedings in the Superior Court of Georgia, were so irregular as not to be entitled to that full faith and credit, contemplated in the fourth article of the Constitution of the United States. We think they come fairly within that provision, and that the judgment, being properly authenticated, is to have full faith and credit given to it in the courts of this State. We have not noticed the absence of Williams from the State of Georgia, at the time the amendment was made. The case shews that the attorneywbo conducted his defence was notified. But even if he had not been, the jurisdiction of the court having attached, and been assented to by the defendant by appearing and pleading to the merits, the court were not to be ousted of their jurisdiction over the case by his removal or change of domicil. It was not a case in which notice was indispensable. The court might order it, or not, at their discretion.
A judgment had been rendered against Williams, and there was no motion to amend the record so far as it related to him. Another name had been inserted by mistake ; —by the amendment that mistake was corrected, and the record made to speak the truth. As such we are bound to receive it, and to give it effect.