Nabers' Adm'r v. Meredith

Supreme Court of Alabama

Nabers' Adm'r v. Meredith

67 Ala. 333

CourtSupreme Court of Alabama

DecidedDecember 15, 1880

StatusPublished

Cited by28 cases

This text of 67 Ala. 333 (Nabers' Adm'r v. Meredith) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nabers' Adm'r v. Meredith, 67 Ala. 333 (Ala. 1880).

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Opinion

SOMEBTVJLLE, J.

— The practice in this State has been too. long and firmly established to be now disturbed, permitting judgments nunc pro tunc to be entered without requiring notice to be given to the opposite party.’ No injustice can result from this rule, for the reason that such amendments are always allowed on some entry or memorandum, which is to be determined from an inspection of the court records, and can not be contradicted or gainsaid by proof of extraneous parol facts. The court erred in reinsing to grant the motion for want of notice.— Glass v. Glass, 24 Ala. 468; Allen v. Bradford, 3 Ala. 281; Bently v. Wright, Ib. 607; Fugur v. Carroll, Minor, 170; Freeman on Judg. § 64.

The facts appearing on the record authorized the amendment. The suit was on a note of hand properly described in the complaint, and the docket of the court contained a memorandum in the hand-writing of the presiding judge, which showed the rendition of a judgment by default in favor of the appellant against the defendants in the judgment. The omission of the amount of damages was a mere clerical mistake, and its insertion a purely ministerial act, such as was always amendable at common law, regardless of any power conferred by the statute of Jeofails.— Wilkerson v. Goldthwaite, 1 Stew. & Port. 159.

The right to amend nunc pro tunc was not affected by the death of one of the defendants in the judgment, or by the fact that the plaintiff in the judgment had been appointed administrator of the estate of another of the defendants since the date of rendition. Except as to the rights of third parties, all such amendments are retrospective, and are everywhere regarded and enforced exactly in the same manner, and to the same extent, as if entered at the time the judgment was originally rendered or taken. The granting of such motions is merely to supply matters of record, evidence, and not to modify or introduce new matters oí fact. — Freeman on Judg. §§. 66-68; Allen v. Bradford, 3 Ala. 281; Powell on Appel. Proc. p. 57, § 34.

It was no legal objection to the motion that over ten years had been permitted to elapse since the original rendition of the judgment. The period within which the power to make such amendments could be successfully invoked at common law was never limited, and, under our statutes, would not be less than the period of time allowed for a judgment to be [336]*336revived by scire facias, which is twenty years. — Code (1876), § 3175; Freeman on Judg. § 56 ; Dan. Chan. Proc. 1219.

The judgment of the Circuit Court is reversed and the cause remanded.

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SOMEBTVJLLE, J.

— The practice in this State has been too. long and firmly established to be now disturbed, permitting judgments nunc pro tunc to be entered without requiring notice to be given to the opposite party.’ No injustice can result from this rule, for the reason that such amendments are always allowed on some entry or memorandum, which is to be determined from an inspection of the court records, and can not be contradicted or gainsaid by proof of extraneous parol facts. The court erred in reinsing to grant the motion for want of notice.— Glass v. Glass, 24 Ala. 468; Allen v. Bradford, 3 Ala. 281; Bently v. Wright, Ib. 607; Fugur v. Carroll, Minor, 170; Freeman on Judg. § 64.

The facts appearing on the record authorized the amendment. The suit was on a note of hand properly described in the complaint, and the docket of the court contained a memorandum in the hand-writing of the presiding judge, which showed the rendition of a judgment by default in favor of the appellant against the defendants in the judgment. The omission of the amount of damages was a mere clerical mistake, and its insertion a purely ministerial act, such as was always amendable at common law, regardless of any power conferred by the statute of Jeofails.— Wilkerson v. Goldthwaite, 1 Stew. & Port. 159.

The right to amend nunc pro tunc was not affected by the death of one of the defendants in the judgment, or by the fact that the plaintiff in the judgment had been appointed administrator of the estate of another of the defendants since the date of rendition. Except as to the rights of third parties, all such amendments are retrospective, and are everywhere regarded and enforced exactly in the same manner, and to the same extent, as if entered at the time the judgment was originally rendered or taken. The granting of such motions is merely to supply matters of record, evidence, and not to modify or introduce new matters oí fact. — Freeman on Judg. §§. 66-68; Allen v. Bradford, 3 Ala. 281; Powell on Appel. Proc. p. 57, § 34.

It was no legal objection to the motion that over ten years had been permitted to elapse since the original rendition of the judgment. The period within which the power to make such amendments could be successfully invoked at common law was never limited, and, under our statutes, would not be less than the period of time allowed for a judgment to be [336]*336revived by scire facias, which is twenty years. — Code (1876), § 3175; Freeman on Judg. § 56 ; Dan. Chan. Proc. 1219.

The judgment of the Circuit Court is reversed and the cause remanded.

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