Adkinson v. Keel

25 Ala. 551

• Court: Supreme Court of Alabama
• Decided: June 15, 1854
• Status: Published

Opinion

CHILTON, C. J.

There can be no doubt, that the Circuit Court, in virtue of its general and plenary jurisdiction, has power to supply a lost record. This point was decided by our predecessors, in the case of MeLendon v. Jones, 8 Ala. 298, and the mode is there substantially pointed out, in which it can be done — namely, a notice, setting forth explicitly ^haf is intended, and such as will advise the opposite party of the affidavits submitted in support of the motion, so as to enable him to controvert them, must be given, so that the defendant may be prepared to meet the affidavits, and controvert them with counter affidavits.

. The notice in this case does not conform to'the requirements of the rule as laid down in that; but is deficient in failing to set forth, with sufficient precision, the judgment sought to be substituted. It does not show whether the judgment was by default, nil dicit, confession, or on contestation, nor the precise amount; but it was for four hundred and two dollars, “ or thereabouts,” — it may be more or less. Indeed, the notice in this case appears to be identical with that which was held insufficient in the case of McLendon v. Jones, save that here is added the time when it was rendered* and that the judgment sought to be established was burned when the courthouse of Coffee was destroyed by fire.

The frequent recuirrence of such casualties requires that the rule should be stated, and the practice pointed out, more definitely, than in the case to which we have alluded. According to our views of correct practice, the notice, of which the opposite party must have reasonable personal service, must contain a copy of that which the plaintiff in the motion will move the court, at the time to be specified in the notice, to enroll, as containing the substance of the lost record, and also of the affidavits by which he proposes to prove that such is a substantial copy. The defendant may controvert these affidavits by counter affidavits; and if the court, upon a hearing on affidavits, should be fully satisfied as to the correctness of the proposed substitute, the same will be ordered to stand enrolled as an entire or partial record in the cause, as the case may be. The court should not, as in this case, render judgment for the amount, but by its order of enrollment supply the record evidence of one already in existence, the evidence of which was destroyed. Being thus supplied, the record has the same effect and efficacy as evidence of a judgment as the original record would have had.—Peake’s Ev. 60 ; 3 Phillips’ Ev. (C. & H. Notes), pp. 1066-68, and cases cited in 8 Ala. 300-1.

Judgment reversed; but as the motion cannot be renewed on the present notice, the cause will not be remanded.