Holloway v. Washington

3 Ala. 668

• Court: Supreme Court of Alabama
• Decided: January 15, 1842
• Status: Published

Opinion

COLLIER, C. J.

From any thing appearing to the contrary, by the entries made in the cause at the term the judgment was rendered, the continuance was fairly and regularly set aside. It is not pretended that the clerk was guilty of malver-sation in office, either in making that entry, or in entering the judgment consequent upon it. Every thing then appearing to be regular, the execution should not have been superseded. Fryer v. Austill, 2 Stew’t Rep. 119.

It was dearly competent for the Court to have set aside the order of continuance, or to have made any alteration or correction in its minutes, during the term at which they were made, but it had not this power at a subsequent term, upon a mere allegation that the clerk, through neglect or inadvertence, had made an improper entry; especially, where it appears that the act of the clerk was sanctioned by the Court. The order vacating the judgment and superseding the execution, cannot be sustained as a judgment nunc pro tunc, because there is nothing in the record to have authorised it. Thompson v. Miller, 2 Stew’t Rep. 470; Allen & Dean v. Bradford & Shotwell, at this term.

Whether the defendant is remediless, or whether, if he has a substantial defence, which without fault on his part he has been prevented from making, he may not obtain relief in chancery, are questions not now before us, and we consequently decline considering them.

The judgment of the County Court vacating that previously rendered in favor of the plaintiff, and perpetuating the superse-deas, is reversed, and a judgment is to be here rendered, directing that the supersedeas be quashed.