delivered the opinion of Court :
The 5th section of chapter 134, Code p. 637, provides:
Syllabus i. <f The court in which there is a judgment by default, or a decree on a bill taken for confessed, or the judge of said court in the vacation thereof, may on motion reverse such judgment or decree for any error for which an Appellate Court might reverse it, if the following section was not enacted, and give such judgment or decree as ought to be given.”
Section 6, referred to in the foregoing section directs that: “ No appeal, writ of error, or supersedeas shall be allowed pr entertained by an Appellate Court or judge for any matter for which a judgment or decree is liable to be reversed or amended, on motion as aforesaid, by the court which rendered it, or the judge thereof, until such motion be made and overruled in whole or in part.”
In the case of Davis, sheriff v. Commonwealth, 16 Gratt. 134, a notice at the instance of the Commonwealth was given to the sheriff and his securities in his official bond, that a motion would be made for a judgment against them for a balance of license taxes. The notice having been duly proved on the day specified, the defendants were called but came not, and at the instance of the attorney general the motion was docketed and continued to a future day of the same term; and, at the like instance, it was continued to other days named until February 21, 1860, when on motion of the Attorney General it was continued until the then next regular term of said court for the trial of civil causes. On a subsequent day of the the same term, February 25, 1860, the last order of continuance was set aside at the instance of the attorney general, and on his motion the court proceeded to render a judgment against the sheriff and his sureties; to which judgment a swpersedeas was awarded by the Court *757of Appeals of Virginia, upon the application of the sheriff. That court held, under the provisions of statutes, from which the said 5th and 6th sections of our statute were copied verbatim : “that this must be considered as judgment by default in the meaning of the law, and that the supersedeas should not have been allowed until a motion had been made to the court in .which the judgment was entered or the judge of said court in vacation thereof, and overruled. And that the supersedeas having been improperly allowed should be dismissed.”
Judge Allen, who delivered the opinion of the court in that case, said, “it seems to me that although not a technical judgment by default at common law, a proceeding by notice falls within the equity, and was intended to be embraced within the scope of these provisions of the Code. * * * * In dealing with the subject of errors and amendments the Legislature must have had in contemplation all modes of procedure by which judgments were to be rendered. The statutes in relation to this subject of jeofails are remedial and should receive a liberal construction. We have seen that, the Legislature has been gradually extending the power of the court rendering a judgment, or the judge in vacation to correct mere clerical errors and reverse judgments for errors in the proceedings at rules, &c., to which the attention of the court had not been called. Thus the revised Code authorized the amending of judgments for illegal orders at rules or in case of any variance between the writ and declaration. And the Code, still extending the remedy, gives to the court which renders the judgment, or to a judge in vacation, authority to reverse a judgment by default for any error for which an Appellate Court might'^reverse it. The object of the Legislature was to save the’parties the delay and costs of an appeal to correct such irregularities and formal errors; errors which seldom affect the merits of the controversy, and which would have been corrected at once by the court if pointed out. The case *758°fa motion comes within the reason of the statute, and term judgment by default was intended to apply to all judgments where there was default of appear-anee- jf error be one for which the judgment might be reversed in an Appellate Court, no appeal, writ of error or supersedeas should be allowed until after motion to the court or judge has been made and overruled.”
(Preston v. Auditor, 1 Call 471, and Cunningham v. Mitchell, 4 Rand. 189, were cited in that opinion.)
In the Code of Virginia, 1860, chap. 181 §§5 and 6, p. 743, are identically the same as sections 5 and 6 of chap. 134 of our Code. Hence, the interpretation and construction given by Judge Allen are applicable to the case before us. Upon the principles laid down by Judge Allen, it is plain that the judgment of November 8, 1875, against Smith, was a judgment by default. It is shown by the bill of exceptions that the defendant Smith had never appeared or made any defense to the proceedings had against him upon said motion, yet the judgment states: “This day came the parties, by their attorneys, and neither party requiring a jury, all matters of law and fact are submitted to the court, and the evidence adduced being heard, it is. therefore, considered by the court that the plaintiffs recover against the defendant, James Knight,” &c. The defendant not having appeared and made defense, it was error for the judgment to state that he had appeared ; it was a false record, and might have been prejudicial to the defendant in after proceedings, either upon appeal, or in a court of equity, had he not moved to correct the judgment as directed by the statute. (Preston v. Auditor, and Cunningham v. Mitchell, ante.)
In King v. Burdett et al., 12 W. Va. 688, this court held that “where the record shows ‘that neither party required. a jury, and the court is substituted in lieu of a jiory to try the case,’ and the case was tried by the court, this is ‘consent entered of record,’ within the meaning of section 35 of chapter 47, Acts 1872-3.”
*759In this case as the judgment states, “neither party requiring a jury, all matters of law and fad- are submitted to the court,” the defendant would in the Appellate Court have been concluded by the record, had he not moved in the below to correct the record in that respect, because the Syllabus 2. record would have been a verity. I am therefore of opinion that the court did not err in setting aside the judgment upon the motion of the defendant. During the term, the record remains in the breast of the judges of the court, and in their remembrance, and therefore the the roll is alterable during that term as they shall direct. 1 Nob. Pr., old edition. For errors so palpable and serious, I think the court should ex mero motu correct the record, that it should verily state the truth.
As to the question of continuance: the general rule is, that a motion for a continuance is addressed to the sound discretion of the Court, under all the circumstances syllab®3. of the case. The bill of exceptions shows that the defendant, Knight, testified that he had no grounds for continuing the case, and no other excuse for delaying the collection of the debt except the existence of an order of the county court made July 2, 1875, staying all proceedings on the execution of May 13, 1875. The plaintiff introduced an order made by the county court January 1, 1874, designating the January and July terms of said court for the fiscal and police affairs of said county exclusively, except as to business within its general jurisdiction. The plaintiff claims, that as the July term was set apart fox- police and fiscal affairs of the county, the court had not at that term jurisdiction to make the restraining order set up by the defendant, and that said order was therefore a nullity.
Whatever may be tjie effect of that restraining order, or whether the counfy court had jurisdiction, or not) to make it at the July term, are questions that enter into the merits of the ease, are questions not yet acted upon by the court below, the case never having been submitted on the merits by the defendant, are of course not *760now before us, the Appellate Court will not consider now the questions on the merits. It may be true that the continuance was granted upon the motion of defendant, but it is evident, that the Court, having those questions touching the restraining order presented for the first time for its consideration, exercised a proper discretion in continuing the case.
The appeal should be dismissed as improvidently allowed, at the costs of the appellant.'
The Other Judges CoNcurred.Appeal Dismissed.