McLendon v. Jones

8 Ala. 298

• Court: Supreme Court of Alabama
• Decided: June 15, 1845
• Status: Published

Opinion

GOL]JTHWAITE,J.

-1. The transcript in this cause show~ nothing whi~h is sufficient to support the judgment rendered by the Court; whether the proceeding i~ an original one, in the man~ ~r of an prdinary 5uit, or whether it is 1oolc~e4 upon as a pro-.~ee~ii1g to ~stit~to lpst p~pees, or to s~pply a ~w record in the place -of o'~ destroyed by fire, or other ac~ident. The c~n~ sequence is, that there must be a reversal of the judgment rendered. But, as we are, perhaps, authorized to infer, from a notice found in the transcript, this may be an attempt to supply the record, and proceedings of a cause, in consequence of the destruction of a former record, it will not be irregular to examine into the power of a Court to do this, either as conferred by the common law, or by statute.

The particular act of Assembly, approved 14th February, ■ 1843, entited an act to establish lost records in Henry county, does not seem to confer any new authority on the Circuit Court, in this particular, or in any way affect that which it had, unless the approval of the action of the commissioners then appointed, and making its judgment thereon subject to revision in this Court, by writ of error, is to be so considered. [See Acts' of 1842-3, p. 88.]

The general statute, conferring jurisdiction on the Circuit Courts, and their judges, gives them power to examine, correct, and punish the omissions, neglects, corruptions and defaults of clerics, &c. Clay’s Dig. 294, § 29; but independent of this express grant of power, which perhaps does not extend to the case of supplying a new record, where one has been lost, the authoriity exists in virtue of the full and plenary powers with which these Courts are invested, to “minister ample justice to all persons, according to law.”

Cases must frequently have occurred in which, by accident, the records of Courts of justice have been destroyed or lost, and it would seem strange, if the common law had provided no adequate means, by which the injuries growing out of such accidents could be averted, or remedied. Although, in the elementary works upon the science, we can find no express reference to such a power, yet this may arise from the fact, that its existence was never questioned. In the first, and indeed only case, we have found in the English reports, upon the subject, the substitution of the entire record seems to have been considered quite a matter of course. All that is said, is a neglect of entering judgment, and a loss of the roll having been sufficiently shown to the Court, a rule was made, that the clerk should sign a new roll, whereon is entered the judgment signed in the cause in Michaelmas term, 1729. This was thirty years' previous to the motion to supply the loss. [Douglass v. Yallop, 2 Burr. 722.] Soo too, in Jackson v. Smith, 1 Caine’s 496, the Supreme Court of New York allowed the party to make up and file a new nisi prius record, with a postea to be indorsed thereon, conformably to the minutes of the trial, and also, to enter up judgment and issue execution. This was done after a lapse of six years, upon an affidavit that the record roll had been lost or burned. In White v. Lovejoy, 3 John. 448, a fi. fa. upon a levy having been accidentally burnt, the Court ordered a newji.fa. to be made out, and delivered to the sheriff. In our own Courts, it has long been the practice to permit the substitution of copies, when the original papers have disappeared from the files, either by accident or design. [Dozier v. Joyce, 8 Porter, 303; Williams v. Powell, 9 Porter, 493; Wilkinson v. Branham, 5 Ala. Rep. 608.]

From the authorities cited, it seems clear, that judgment rolls and entries, may be substituted, when the original records are lost, and that the matters thus substituted, by order of the proper Courts, become records of equal validity to those which are destroyed.

2. The manner of correcting the loss appears, from the cases cited, to be, to show by affidavits, what the records contained, the loss of which is to be supplied. Of course the substitution can only be made after a personal notice of the intention to move the Court, and this notice should be sufficiently explicit to advise the opposite party of what is intended; and such also as will enable him to controvert the affidavits submitted in support of the motion. If the affidavits are met with denials, by counter affidavits, it will obviously be necessary to proceed with the utmost .caution; and when the evidence leaves the matter doubtful, or uncertain, the.motion ought to be denied.

In the present case, the notice is defective, as not containing a sufficient description of the record proposed to be made anew, or its conformity with that which is said to have been destroyed, therefore it is useless to remand the case, as the motion ought not to be entertained upon the notice given.

Judgment reversed.