Owen v. Bankhead

82 Ala. 399

Opinion

STONE, C. J.

— A final decree had'been rendered in this cause, and under it the register had made sale of the lands the bill sought to have sold. At a subsequent term, application was made for leave to amend the bill. The application’ came too late. The final decree, and adjournment of the court, placed the subject of that decree beyond the power of the chancellor to alter any thing therein decided. Ex parte Cresswell, 60 Ala. 378; Cochran v. Miller, 74 Ala 60; Marshall v. McPhillips, 79 Ala. 145.

Nor can the complainants obtain relief by decretal order nunc pro tunc. The decree follows the'original bill in giving the numbers of the land. If we were to order an amendment of the decree, so as to make it .correspond with the numbers furnished in the evidence, there would be a variance between it and the; avérments of the bill. In other words, we would be .giving to complainants relief they had neither asked for, nor, by their averments, shown themselves entitled to. Such relief as this can not be obtained by decree or judgment nunc pro tunc. We can not presume the chancellor intended to grant relief that was. not asked for; and on a motion such as this, we can make no order which we feel assured he neither made, intended to make, nor could properly have made on the pleadings before him. Taylor v. Harwell, 65 Ala. 1; Emerson v. Heard, 81 Ala. 443; 1 So. Rep. 197; Barton v. Barton, 75 Ala. 400; Guilmartin v. Wood, 76 Ala. 204.

Affirmed.