Roll v. Howell

73 So. 218, 15 Ala. App. 347

• Court: Alabama Court of Appeals
• Decided: December 19, 1916
• Status: Published

Opinion

BROWN, J. —

The judgment of this court entered on the 13th day of May, 1913, is not void on the face of the record; and the questions presented by this motion are not within the influence of the principle, often declared in this state, that courts, in order to protect the integrity of their records, will expunge therefrom orders and judgments void on their face, regardless of the lapse of time. — Sweeney, et al. v. Tritsch, 151 Ala. 242, 44 South. 184.

(1) On the face of the record in this case, jurisdiction is affirmatively shown, and the proceedings appear in all things regular; and on the attack here made the record imports absolute verity. —Chapman v. Holding, 54 Ala. 61.

If therefore the date on which the appeal bond was approved was otherwise material, the date of approval (June 29, 1912) shown by the record would be conclusive.

There is no dispute that the bond was filed by the appellant on the 29th day of June, 1912; but movant (appellee’s administrator) seeks to show that the bond was not approved until the 2d day of July, the day of appellee’s death. This controversy is not material. Regardless of the date of approval, if the bond as filed was subsequently approved, the appeal was taken when the appellant presented a good and sufficient bond to the clerk for approval, and the subsequent approval would relate back to the time the bond was presented and filed by the clerk. — Kimbrell v. Rogers, 90 Ala. 339, 7 South. 241; Moore v. Spier, 80 Ala. 129.

(2) The bond having been filed before the death of the appellee — though subsequently approved — jurisdiction over the cause was transferred to this court within the lifetime of appellee.— Sherman v. State, infra, 72 South. 755; McLaughlin v. Beyer, 181 Ala. 427, 61 South. 62; Lasseter v. Deas, 9 Ala. App. 568, 63 South. 735.

(3) And the transcript having been filed and the cause submitted without the suggestion of the death of the appellee, the judgment of the court is not void. — 3 Corpus Juris, 1024, § 987; Reid v. Strider, 7 Grat. (Va.) 76, 54 Am. Dec. 120; Deppen v. Immohr’s Ex’r, 119 Ky. 413, 84 S. W. 333; Spalding v. Wathen, 7 Bush (Ky.) 659; Phelan v. Tyler, 64 Cal. 80, 28 Pac. 114, Delaplaine v. Bergen, 7 Hill (N. Y.) 591; Green v. Watkins, 6 Wheat. 260, 5 L. Ed. 256; Rogers v. Paterson, 4 Paige, Ch. (N. Y. 409; U. S. Bank v. Weisiger, 2 Pet. 481, 7 L. Ed. 492.

(4) The judgment not being void, but, at most, irregular, the court has no authority after the adjournment of the term to set it aside. — Donnell v. Hamilton, 77 Ala. 610; Reid v. Strider, supra; 1 Freeman on Judgments, §§ 121, 152.

What we have said in no way conflicts with the holdings that the court, after a suggestion of the death of one of the parties, will not proceed without an order reviving the cause, and, in the absence of such revivor, the appeal will be abated. — English v. Andrews, 4 Port. (Sup.) 319; Evans v. Boggs, Minor (Sup.) 354; Lasseter v. Deas, supra; Rule 37, Supreme Court Practice, Code 1907, p. 1515.

The motion in this case is overruled, and movant taxed with the costs.

Motion overruled.