Herring v. Cherry, Smith & Co.

75 Ala. 376 | Ala. | 1883

SOMEB.VILLE, J.

The amendment authorized by' the circuit court in this case was improperly allowed under the rule prevailing in this State in reference to making amendments of records nunc pro tunc. Our established practice is to permit such amendments to be made only on matters of record, or quasi of record, and parol evidence is never admissible in aid of such a motion.—Lilly v. Larkin, 66 Ala. 126 ; Nabers v. Meredith, 67 Ala. 333; Metcalf v. Metcalf 19 Ala. 319; Draughan v. Tombeckbee Lank, 1 Stew. 66; s. c. 18 Amer. Dec. 38; Ex parte Jones, 61 Ala. 399.

The entry of a judgment nunc pro tunc is never proper, in the absence of record evidence that a judgment has been ordered by the court, its function being to supplement the failure or neglect of the clerk to copy such judgment more elaborately upon the record. For this purpose the court can only look to matters of record, including any entry or order made by or under the authority of the court, in some book belonging to the office, and authorized to be kept by law, or to papers on file in the cause, which may properly be considered as quasi records of the court.— Hudson v. Hudson, 20 Ala, 364. The amendment must be in aid of something that has been imperfectly done, and not to do something which has been totally left undone. If the record fails to show any entry or memorandum of the judge ordering a judgment, no case is presented authorizing a nunc pro time entry.—Freeman on Jndg. (3d Ed.) §§ 68, 62.

Where the papers on file in the cause show a verdict rendered at a previous term, and there is an order or memorandum on the judge’s docket showing the fact of the rendition of judgment on such verdict, however brief or imperfect, an entry nunc pro tunc may be made at a subsequent term of the court, entering up judgment in proper form. The case of Mays v. Hassell, 4 Stew. & Por. 222, cited on the brief of appel-lee’s counsel, does not go further than this, and such, in fact, is the generally recognized rule on the subject.—Thompson v. Miller. 2 Stew. 470; Gray v. Thomas, 12 Sin. & Marsh. 111; Shephard v. Brenton, 20 Iowa, 41.

The record in the case before us fails to show any entry or memorandum on the judge’s docket, or any other record evidence that a judgment was rendered in the cause at the term when the alleged trial took place. No action of the court is shown on the paper claimed to be a memorandum of the verdict of the jury signed by the foreman. This is fatal to the case, and could not be supplemented by oral evidence. We need say nothing of other errors assigned.

The act of March 1, 1881, regulating the mode of procedure in making amendments of this character, does not change the foregoing principles of law, which have so long prevailed in this State. It only provides for giving notice of such applications to adverse parties, and regulates the taxation of costs. The proviso is express, that the act “ shall not be so construed as to extend or enlarge the power or jurisdiction of any court to enter any judgment, order, or decree, nunc pro fame.” — Acts 1880-81, pp'. 66-67, § 3.

The judgment of the circuit court must be reversed, and a judgment here rendered dismissing the motion of the appel-lees at their own costs.