Pappot v. Howard

45 So. 581 | Ala. | 1908

ANDERSON, J.

Section 3320 of the Code of 1896 provides, when a special finding is requested, that “the-court must state in writing the facts, as it finds them, and such statement, with the judgment of the court, must be entered on the minutes.” The law does not require or contemplate that the special finding shall be simultaneous with the rendition of the judgment. It is sufficient if the facts are found and made a part of the record any time before the judgment becomes final, either by adjournment of the court or the operation of the statute, making judgments final before adjournment. The act of February, 1889 (page 704 of Weakley’s Local Laws of Jefferson County; Loc. Laws 1888-89, p. 801), by section 11 provides thát final judgments shall be beyond the control of the court after 30 days from the rendition thereof. The judgment was rendered in the case at bar on October 6th, and the special finding was filed with the clerk November 4th following, within 30 days, and before the judgment became final. It thus became quasi a part of the record, and the failure of the clerk to incorporate it in the minutes of the court was an omission which could be supplied nunc pro tunc. — Myers v. Conway, 90 Ala. 109, 7 South. 639. And it was immaterial that the amendment was made at a subsequent term and during the pendency of this appeal, as it has been properly certified to this court. — Seymour & Son v. Thomas Harrow Co., 81 Ala. 250, 1 South. 45.

If the trial court erred in the rulings as to the special pleas and the replications to same, it affirmatively appears that it was error without injury. The defendant interposed the plea of the general issue, upon which the plaintiff took issue. This put upon him the burden of proving his complaint, which he failed to do, as the finding of facts discloses that the plaintiff voluntarily abandoned his contract without legal cause for doing so. As .he failed to show a performance, or that he was prevented by the defendant from doing so, he could not recover upon the counts for a breach. Nor could he recover for the quantum meruit under the common counts. — Martin v. Massie, 127 Ala. 504, 29 South. 31. It is therefore clear that, no matter what errors may be found in the rulings with reference to the special pleas, it could not and did not operate to appellant’s injury, since he Avas not entitled to recover in any event. — Cross v. Esslinger, 133 Ala. 409, 32 South. 10; Andrews v. Hall, 132 Ala. 320, 31 South. 356. It is true there Avas no evidence offered in the foregoing cases; hut the rule is analogous Avhen evidence is offered, but fails to establish the material averments of the complaint.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Doavdell and McClellan, JJ., concur.