54 Ala. 198 | Ala. | 1875
Courts of record have an inherent power, without the aid of express legislation, to establish and substitute its records or any part of them, which may have been lost or destroyed. The practice proper to be pursued, independent of statutory provisions, has been clearly pointed out in former decisions of this court.—McLendon v. Jones, 8 Ala. 298; Doswell v. Stewart, 11 Ala. 629; Atkinson v. Keel, 25 Ala. 551. The former existence and the contents of the record lost or destroyed, may be proved by parol, or any secondary evidence, which does not disclose the existence of other and better evidence.—1 Green. Ev. § 509; Forsaith v. Clark, 1 Foster (N. H.) 409; Jackson v. Cullum, 2 Blackf. 228. The various statutes which have been enacted in this State authorizing the substitution of lost records, so far as they pertain to judicial proceedings, which from the constitution of the courts are necessarily matters of record, are merely affirmative of the principles of the common law, and provide merely cumulative remedies.—Doswell v. Stewart, supra.
In Wilkinson v. Goldthwaite, 1 St. & Port. 170, it is said, “By the very constitution of courts of justice, and to answer the ends of their creation, they have by the rules of the common law power so far to correct the omissions of their own ministerial officers by entering judgments nunc pro tunc,' as not to allow their mistakes to defeat the purposes of justice. This question, however, is not strictly open for discussion in this State. Tt has long been the practice of the circuit courts to enter judgments nunc pro tunc, whenever essential to the interests of suitors, and where the record furnished sufficient data for such judgments.” This power the court of probate had as a court of record, to prevent injustice, and to conform its records to the truth of the proceedings had in it. The statute, in declaring the authority of the judge of probate, provides, among others, the power he may exercise: “to complete the minute entries and decrees in causes in their courts, when the same are incomplete on account of their failure to make the necessary
The application of the appellee was either to substitute a lost record of a final settlement and decree, or for the completion of the minute entries of the court of probate, so as to show a final settlement of his guardianship and the final decree rendered thereon. We pass over the demurrer to the application and the numerous exceptions to the evidence
In the last point of view the evidence could be by parol, but the former existence of the settlement aud decree, its contents and loss, must, be shown. Regarding the application as under the statute to complete the minute entries, or ás addressed to the inherent power of the court to amend its records or enter a judgment nunc pro tunc, the evidence on which it can be supported must be of record. The only evidence offered in support of the application, discarding from consideration the bond of the guardian and the records of annual settlements, and the petitions for investment of funds and renting of lands, which furnish no aid in determining the question, the only record evidence, or evidence of any character, is the resignation of the guardian, the appointment of his successor, and the filing his accounts and vouchers for a final settlement — the appointment of a day for such settlement, of which notice was ordered, .and the fee bill of the probate judge, found in the fee book, charging for fees on final settlement. This evidence is very far from showing the facts on which a final settlement could be based and a final decree rendered. The nptice required by the order made on the filing of the accounts and vouchers, is not shown to have been given. The auditing and allowing of the accounts and vouchers on that day, and the ascertainment by the court of the state of the accounts, does not appear. The judgment or sentence then pronounced by the court is not shown. On such evidence it can not be affirmed there was a final settlement made, though it may have been proposed and the proceedings preliminary to it have been taken; nor that a final decree was rendered or what were its contents, nor that such decree was lost or destroyed.
The court of probate erred, therefore, in rendering judgment establishing the proposed final decree, and its judgment must be reversed and the cause remanded.