72 Ala. 134 | Ala. | 1882
When this case was first presented to us, we were inclined to believe the judgment should have borne date on the Monday succeeding the Saturday morning on which the verdict was rendered. The ground of that first impression was, that the judgment establishing the will was entered on the minutes of the court after office hours on Saturday, being in fact so entered between eight and ten o’clock, Saturday night. We had then recently decided the case of Pinney v. Williams, at the last term (69 Ala. 311), which was an attempt to compel, by mandamus, a change of the date of a decree of the Probate Court. Speaking of the duty of the probate judge in such case, we then said: “It clearly seems to be true, that every such decree ought to be dated when it is filed in the office as a paper in the cause, and not before or after; and that the dating of such decree is a mere ministerial act, as distinguished from the judicial act of its rendition, and the discretionary power of determining its terms, conditions, or contents. These propositions we are strongly inclined to favor; but, as they are not necessarily before us for our consideration, we do not undertake to decide them.” The decree, in that case, was rendered on a final settlement of an estate ; and such decrees usually embrace the findings of the court, both on law and facts. Their principles, or terms, can not be known, until they are proclaimed or recorded by the presiding judge. They resemble the decrees of a chancellor, and remain in the breast of the judge, unknown and sub
As we have intimated above, the present is a case of contested will. The will of M. W. McOalley had been propounded for probate, and objections in writing had also been filed, resisting its probate and establishment. Thereupon, an issue devisamt ml non was made up, and submitted to a jury. Either party had the right to claim a jury trial. — Code of 1876, § 2317. We must presume this right was claimed; as the court, in the absence of such claim, would not have awarded it. Such jury trials are governed by the same rules as those which obtain in courts of law. — lb. § 2326. "When the jury returned their verdict, in favor of the will, the judgment of the court establishing it was a matter of course, unless the verdict was set aside, and a new trial granted. — lb. % 2329. In this, the analogy between it and a suit at law is perfect. When the verdict was rendered in this case, sustaining the will, the contestants were as fully informed what the judgment would be, as they were when the minute-entry was written up. Of course, we intend this remark to apply only when there is no ground for arresting the judgment. The judgment entered is but the logical conclusion, resulting from the premises ascertained by the verdict. In practice, the judgment on verdict is rarely, if ever, announced by the court. It follows so naturally and necessarily, that it is taken for granted. Its first actual utterance is in the reading of the minutes, the work of the clerk. The judgment, no matter when written up, is considered and treated as given on the day of verdict is rendered. Such is the rule in trials at common law; and we think the same rule must be observed in this case. In what we have said, we have considered only the averments of the petition. It presents no case for relief.
Affirmed.