Patterson v. Burnett

Supreme Court of Alabama

Patterson v. Burnett

6 Ala. 844

CourtSupreme Court of Alabama

DecidedJune 15, 1844

StatusPublished

Cited by4 cases

This text of 6 Ala. 844 (Patterson v. Burnett) 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.

Bluebook

Patterson v. Burnett, 6 Ala. 844 (Ala. 1844).

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Opinion

ORMOND,’ J.

The case of Coopwood v. Taylor’s adm’r, [7 Porter, 34,] is an authority fully in point, that the objection to the revival of the suit, cannot be made in this court, if not urged [845]*845in the court below. In addition, it may be added that the record shows that the suit was regularly revived, first in the name of Hill, as'sheriff and administrator ex officio, and afterwards in the name of Burnett, as his successor.

The recital of the clerk at the head of the judgment entry, is merely for the purpose of identifying the cause to which the judgment relates, and if he makes a mistake in the name of one of the parties, it does not affect it. It is at most, a mere ^lerical misprision, which is amended by other parts of the record. The judgment is in favor of the “plaintiff;” who he is, is ascertained not by the declaration of the clerk, but by the record.

Thenoteon which the suit was brought, havingbeenlostwhilstthe cause was pending, the counsel for the plaintiff made affidavit of that fact, and also of the genuineness of the instrument, and filed it in the cause, apparently upon the mistaken supposition, that the act of 1828, prescribing the manner of suing on lost bonds or notes, was applicable to the case. [Clay’s Dig. 382, § 9.] That applies only to suits commenced on a lost instrument, and does not apply where it is lost, whilst the causéis progressing. But if it did, the affidavit which the statute requires, would be evidence of nothing but the loss of the security. If in this case the affidavit had been alone relied on as proof of the loss and contents of the note, it would be undoubtedly erroneous; but it appears that the same witness swore to the same facts orally before the jury, and although the reading of the affidavit to the jury, was irregular, we cannot perceive that the defendant could by possibility, be preju- ■ diced by it. It is not, therefore, such an error as will be available in this court.

Bet the judgment be affirmed.

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ORMOND,’ J.

The case of Coopwood v. Taylor’s adm’r, [7 Porter, 34,] is an authority fully in point, that the objection to the revival of the suit, cannot be made in this court, if not urged [845]*845in the court below. In addition, it may be added that the record shows that the suit was regularly revived, first in the name of Hill, as'sheriff and administrator ex officio, and afterwards in the name of Burnett, as his successor.

The recital of the clerk at the head of the judgment entry, is merely for the purpose of identifying the cause to which the judgment relates, and if he makes a mistake in the name of one of the parties, it does not affect it. It is at most, a mere ^lerical misprision, which is amended by other parts of the record. The judgment is in favor of the “plaintiff;” who he is, is ascertained not by the declaration of the clerk, but by the record.

Thenoteon which the suit was brought, havingbeenlostwhilstthe cause was pending, the counsel for the plaintiff made affidavit of that fact, and also of the genuineness of the instrument, and filed it in the cause, apparently upon the mistaken supposition, that the act of 1828, prescribing the manner of suing on lost bonds or notes, was applicable to the case. [Clay’s Dig. 382, § 9.] That applies only to suits commenced on a lost instrument, and does not apply where it is lost, whilst the causéis progressing. But if it did, the affidavit which the statute requires, would be evidence of nothing but the loss of the security. If in this case the affidavit had been alone relied on as proof of the loss and contents of the note, it would be undoubtedly erroneous; but it appears that the same witness swore to the same facts orally before the jury, and although the reading of the affidavit to the jury, was irregular, we cannot perceive that the defendant could by possibility, be preju- ■ diced by it. It is not, therefore, such an error as will be available in this court.

Bet the judgment be affirmed.

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Bluebook (online)

6 Ala. 844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-burnett-ala-1844.

Opinion

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