Leinkauff & Strauss v. Tuskaloosa Sale & Advancing Co.

105 Ala. 328 | Ala. | 1894

HARALSON, J.

There is no bill of exceptions in this case. It was brought here on what purports to be an enrolled record. The judgment appealed from, as the certificate of appeal and appeal bond show, is one -which, was rendered on the 12th day of June, 1893, amending nunc pro tunc a judgment of the date of June 16th, 1892. On that date, an incomplete judgment entry appears to have been made on the motion docket, overruling the appellants’ motion against the defendant, King, and the sureties on his bond, for a rule nisi, to show cause why an order should not be made requiring him to pay over to appellants certain moneys collected by him, as alleged, in their respective attachment suits against said Tuskaloosa Sale & Advancing Company. What the original judgment entry of the 16th of June, 1892, overruling said motion, and which was amended nunc pro tunc on the 12th day of June,' 1893, was, does not plainly appear from the transcript; but the amended judgment recites, that it appeared to the court, from an inspection of the records, that the clerk of the court had made a mistake in entering the original judgment, in stating the names of the parties to the suit, and, therefore, it was ordered that said amendment be made, as we find it in this transcript, and which will be set out in the statement of the case. It is from this judgment, as has been stated, this appeal is prosecuted.

The appellants assign as error, besides this judgment, two other orders or judgments of the court, one made in vacation, November 21, 1890, directing the sheriff to distribute the funds in his hands, to the attaching creditors petitioning therefor under section 2960 of the Code, and the other, on said original judgment or order of the court, refusing to grant a rule nisi against said sheriff and his sureties, which was afterwards amended nunc pro tunc on the 12th day of June, 1893.

If we were to allow, that these three distinct rulings of the court could be united in one appeal, and errors assigned thereon to reverse tfiem, and that the appeal was from each, we still could not consider the appeal as to the first judgment — the one, on the 21st of November, 1890 — since more than twelve months intervened • between its rendition and the prosecution of this appeal, on the 12th of - June, 1893. And, we are not permitted to notice the second ..^ssignment-of error, as-to,,the ruling., of-the •■court on 16th'J-fine, 1892, ’overruling tlie motion" for a rule nisi, for the reason, if for no other, that it is not appealed from.

As to the other and last assignment, that the court erred m amending said judgment nunc pro tunc, if we allow that there is an enrolled record and it is here in proper form — which it must be understood we do not do — there is no error shown in the allowance of the amendment; but it appears on the contrary, that there was no error therein, since the nunc pro tunc amendment itself affirms, that on an inspection of the record, sufficient matter to authorize it appeared to the satisfaction of the court.—Bryan v. Streeter, 57 Ala. 104.

And it may be further added, as to a rule for a summary judgment against a sheriff and his sureties, that the statute makes no provision for such judgment, in a case of this kind, and it can not be extended by construction. — Code, §§ 3100 — 3106, 2961; Chandler v. Francis Vandegrift Shoe Company, 94 Ala. 233.

From what has been said, and for other reasons unnecessary to assign, it appears that the appellants have no case, and that the judgment appealed from should be affirmed.

Affirmed.