2 Ala. 29 | Ala. | 1841
— It is objected for the plaintiff in error, that no amendment can be made in a judgment after an interval of one term — such is not the law, the amendment may be made at any time if the evidence is in existence, which will authorize it to be done. In the case of Goldthwaite v. Wilkerson [1 Stewt. & Por. 159] an amendment of this kind was made after the lapse of seven years.
What evidence will bo sufficient to authorize the amendment of a part of the record nunc pro tunc, is largely discussed in the case of Moody v. Keenar, 9th Porter, 252. In the case of Thompson & Miller, [2d Stewart’s, Rep. 470] it was hold that such an amendment could not be made on oral testimony, and was only authorized “ when predicated on matters of record or some entry made by or under the authority of the Court.”
If we were at liberty to notice the entry on the trial docket, ivhich the clerk states was a memorandum of the presiding judge, (but which is no part of this record) it would not justify the amendment made in this case. The word “ dismissed,” if it indicates, as it must be held to do, the disposition made of the cause at the first trial, did not authorize the amendment, as the judgment entered at the trial term, was in exact accordance with it. The cause could only have been dismissed by the plaintiff and at his own cost, unless by the agreement of the defendant, the costs were to be levied against him.
There does not appear therefore to have been any warrant for the amendment, none such appears in the record, and we cannot presume that any exists. Let the judgment of the Court, amending the previous judgment, be reversed.
