Metcalf v. Metcalf

| Ala. | Jun 15, 1851

PARSONS, J.

There are numerous decisions of this court-covering the points presented by the assignment ©f errors-in this-case.—Miller v. Thompson, 2 Stew. 470; Wilkinson v. Goldthwaite, 1 Stew. & Port. 159; Moody v. Keener, 9 Port. 252" court="Ala." date_filed="1839-01-15" href="https://app.midpage.ai/document/moody-v-keener-6529501?utm_source=webapp" opinion_id="6529501">9 Port. 252; Brown v. Bartlett, 2 Ala. 30; ib. 164; Benford v. Daniels, 13 Ala. 667" court="Ala." date_filed="1848-01-15" href="https://app.midpage.ai/document/benford-v-daniels-6503638?utm_source=webapp" opinion_id="6503638">13 Ala. 667; Bondurant v. Thompson, 15 Ala. 202. It is well settled by these decisions, that a record cam only be amended by some matter of record; and that parol evidence is not admissible for this purpose. In Brown v. Bartlett, supra, it is held that if no- warrant fox? the amendment appears in the record, none can be presumed to exist; and to the same effect is the case of Rains v. Ware, 10 Ala. 625. Upon what evidence, except the memoranda on the trial docket set out in the record, the judgment nunc pro tunc, entered on the 14th August, 1849, was predicated, is not shown, and we have seen that we cannot pre - sume that any other evidence exists, or was before the courtj the memoranda are wholly insufficient.

In Moody v. Keener, 9 Port. 252, issue had been joined on the plea of u not guilty,” in an action on the case. The jury returned a verdict in favor- of the plaintiff, which the judgment entry recited as a verdict in an action of assumpsit. The'judg-nxent was revei’sed by this court, because the verdict was not responsive to the issue. Upon the cause being remanded to the Circuit Court, a motion was submitted to amend the judgment entry nunc pro tunc, which- was sustained. The evidence in-trodüced to sustain the motion was the docket of the judge presiding on the trial of the cause, which contained the following memoranda opposite the statement of the case, viz: “ Dem. Overruled. Jury, 1, verdict for plaintiff/’ and the file of papers in the cause; and upon the writ was an indorsement in these words, viz : “We the jury find for the plaintiff $1,000 25 with interest and costs of suit.” This proof was held to be insufficient to authorize the judgment nunc pro tunc.

In this case, the memoranda show but few of the facts, upon which a regular decree of the Orphans’ Court could be based. They do not show a presentation of his accounts and vouchers by the administrator for settlement, publication as required by law, an allowance of the accounts and vouchers by the court, the amount received by the administrator, or the amount paid out by him; nor do they show who is the administrator, nor whether the settlement was partial or final. If it be legitimate to look to these memoranda, they are wholly insufficient.

The judgment must be reversed, and the cause remanded.