Farmer v. Wilson

34 Ala. 75

• Court: Supreme Court of Alabama
• Decided: January 15, 1859
• Status: Published

Opinion

STONE, J.

If the amended judgment in this record is to be regarded as the judgment, there can be no question that the record is free from error. That judgment is in every respect formal and sufficient. In fact, none of the assignments of error question its sufficiency.

It is urged for appellant, that the circuit court erred in amending the judgment nunc pro tunc, because there was nothing in the record to amend by. In reply to this objection, it is contended for appellee, among other things, that the recitals in the amended judgment are sufficient to sustain it; that what purports to be copies from the court and bar dockets, are no part of the record in this court, and hence there is nothing in the record which ■authorizes us to hold that the circuit court ex-red in amending the judgment nunc pro tune. The recitals in the judgment qxjtry are as follows: “ The court being of opiuion from the records and dockets, to-wit, the court and bar dockets, which are here made a part of this reeoi'd of the cause, that judgment by default ought to have been entered at the last term of the court, as well ■against said Chisholm as against said Farmer, and that it was a clerical error dismissing the suit as to said Chisholm,” &e.; and the courtthei'eupon rendered judgment against both defendants.

The following authorities are to the point, and show that the coui’t, in considering the motion, had authority to consult the entiies upon the dockets, as quasi reeoi’d evidence in the cause; and that amendments, granted upon sufficient evidence drawn from that source, will be upheld. The recital, that the court was of opinion from the record and dockets, $c., is a sufficient averment that the court was satisfied: in other words, that the evidence was suffieient^nd satisfactory. — Yonge v. Broxson, 23 Ala. 684; Glass v. Glass, 24 Ala. 468; Price v. Gillespie, 28 Ala. 279; Rains v. Ware, 10 Ala. 623.

We do not think the portions of the court and bar dockets found in this transcript, are sufficiently identified to authoiize us to regard them as a part of the judgment entry, which, in this case, stands for a bill of exceptions. The l-ecord (judgment entry) does not set out a copy of them, nor are they so described by marks, parties, or other identifying features, as to leave no room for mistakes in the transcribing officei’. The only description given is, “ the court and bar dockets, which are here made a part of this record.” This description contains no identifying features, but leaves the question of identification to the act and certificate of the clerk. To hold the description in this case sufficient, would be to establish a veiy dan-gei’ous precedent. — Branch Bank v. Mosely, 19 Ala. 222; Bradley v. Andress, 30 Ala. 80; Waring v. Gilbert, 25 Ala. 295; Stodder v. Grant, 28 Ala. 416; Gains v. Beirne, 3 Ala. 114; Saunders v. Camp, 6 Ala. 73; Bostwick v. Beach, 18 Ala. 80.

It has been argued before us, that inasmuch as the judgment nunc pro tunc was rendered after this appeal was taken, we cannot, on this appeal, consider the sufficiency of the grounds on which it was rendered; that to bring up that question, a new appeal is necessary. The principles above declared render a decision of this question unnecessary. — See Andrews v. Br. Bank, 10 Ala. 373; Moore v. Horn, 5 Ala. 234.

The judgment of the circuit court is affirmed.