Price & Simpson v. Gillespie

28 Ala. 279

Opinion

RICE, J.

A recital in a judgment nunc pro tunc, that sufficient matter to authorize it to be entered was disclosed to the court “ by sufficient, competent and satisfactory evidence,” will sustain it, if the parties appeared upon the motion to perfect the judgment, and do not show by bill of exceptions, or in some other appropriate manner, that such recital is untrue. — Rains v. Ware, 10 Ala. R. 623.

The entry made at the September term, 1855, of the circuit court of Lawrence, whereby the judgment rendered at the preceding term was “ revoked, annulled, and held for naught,” and another judgment substituted for it, is a judgment nunc pro tunc, and must be sustained upon the principle above announced. The first three assignments of error relate to that entry, and show no cause for reversal. The fourth assignment of error assumes that there was a judgment nunc pro tunc, rendered “ upon the petition of Henry Gillespie to re-tax the costs.” This assumption is not sustained by the record. The judgment for re-taxation of costs was rendered upon “ the motion of the defendant, Lucy Gillespie,” and is not embraced by the assignments of error.

There is nothing embraced by the assignments of error which authorizes a-reversal, and the judgment is affirmed.