| Ala. | Jun 15, 1851
Two transcripts of record are filed in this 'cause. In the first transcript the clerk certifies a judgment only, and that the same-is all “the record of said cause on file, the balance being lost or mislaid.”
The counsel for the plaintiff in the court below insists that the judgment ought to be sustained, because the entry shows that the parties appeared in court, joined issue, and the jury found a verdict for the plaintiff, and that hence the existence of «.writ, declaration and plea should be presumed. We do not think we are authorized to go so far, and in that aspect of the case, must declare the judgment erroneous.
In the second transcript, it appears that after the writ of error was sued out, to-wit, on the 16th of-January, 1851, an order 'was made in said cause in the court below, in these words: “Ordered by the court, that the plaintiff have leave to substitute papers, to-wit, writ, declaration, &c., in this cause, and that ho file them as part of the record of said -cause.”
There -is nothing in the record showing that the defendant had any notice of this proceeding, and the question arises whether it can be sustained without such notice? There seéms to be some contrariety in the opinions heretofore expressed by this court on this subject. In the case of Wilkinson et al. v. Branham, 5 Ala. 608" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/wilkerson-v-branham-6502053?utm_source=webapp" opinion_id="6502053">5 Ala. 608, it was held, that though it is proper to require notice to be given to the defendant, that a motion will be made to substitute a declaration; yet if the court grant the motion without a previous notice, its action will not be considered as void or irregular. The cases of Dozier v. Joyce, 8 Port. 303" court="Ala." date_filed="1838-06-15" href="https://app.midpage.ai/document/dozier-v-joyce-6529424?utm_source=webapp" opinion_id="6529424">8 Port. 303, and Williams v. Powell, 9 ib. 493, go strongly to show the necessity of notice. In the case of McLendon v. Jones, 8 Ala. 298" court="Ala." date_filed="1845-06-15" href="https://app.midpage.ai/document/mclendon-v-jones-6502604?utm_source=webapp" opinion_id="6502604">8 Ala. 298, the judge, in speaking of the rights of our courts by the common law to substitute lost records, says, “ Of course the substitution can only be made, after a personal notice of the intention to move the court, and this notice should be sufficiently explicit to advise the opposite party of what is intended.” In Doswell v. Stewart, 11 Ala. 629" court="Ala." date_filed="1847-01-15" href="https://app.midpage.ai/document/doswell-v-stewart-6503269?utm_source=webapp" opinion_id="6503269">11 Ala. 629, the Chief Justice says: “ Whether we con-hler the proceeding in reference to the statute or the common.
It is certainly a most important legal rule, and altogether essential to the proper administration of justice, that whenever a ’party’s rights iñáy be acted on by k court, he should have notice 'thereof, that he may appeal and cross examine the witnesses and defend his interests. The decision in the case of Wilkinson et al. v. Branham seems to be founded on the supposed legal presumption, that after a judgment the parties are still in court and conversant of all that may be further done in the case. This, however, is well known not to be true in the practice of 'the court's of this State’; and if a party should be allowed after judgment to substitute a record, without actual notice, the adverse party would 'be 'deprived of the important legal right of having an opportunity ’of questioning -its loss and disputing the 'truth of the secondary proof.
The judgment is reversed and the'Cause remanded*