Ex parte Gilmer

Dec 15, 1879

Versions:64 Ala. 234

STONE, J.

As far back as 1827 it was decided in this court that, in entering judgments nunc pro tunc, only record evidence, or evidence quasi of record, could be looked to. Oral proof can not be considered; for, to allow it, would be to contradict the record by parol testimony. — Draughan v. Tombeckbee Bank, 1 Stew. 66; Thompson v. Miller, 2 Stew. 470; Reid v. Brashear, 7 Por. 448; Armstrong v. Robinson, 2 Ala. 164; Benford v. Daniels, 13 Ala. 667; Lewis v. Lewis, 25 Ala. 315; Farmer v. Wilson, 34 Ala. 76; Harris v. Martin, 89 Ala. 556; Summersett v. Summersett, 40 Ala. 596. It is equally well settled, in the above, and many other cases, that from a judgment rendered nunc pro tunc, which is final, or definitive of the cause in the court below, leaving nothing further to be done, save to enforce the judgment, an appeal lies to this court. The judgment rendered nunc pro tunc, in this case, was a final disposition of the cause, leaving nothing to be done afterwards, except to enforce the judgment by execution. Prom that judgment, an appeal would have lain to this court. — Ex parte Hendree, 49 Ala. 360.

The writ of mandamus will be granted, only where there is a specific legal right, and no other legal remedy adequate to its enforcement. — 2 Brick. Dig. 240, § 4; Murphy v. State, ex rel. 59 Ala. 639; Withers v. State, 36 Ala. 252; Heflin v. Rock Mills Man. Co., 58 Ala. 613. The relator in this case has an adequate remedy for the error he complains of, by appeal, and the writ of mandamus must be refused.