Peddy v. Street

87 Ala. 299 | Ala. | 1888

CLOPTON, J.

This is an appeal from an order of tbe Circuit Court, substituting the record of a destroyed judgment rendered at tbe Fall term, 1869, of tbe same court. Tbe proceedings, as originally instituted, also sought to substitute tbe summons and complaint in tbe cause in which the judgment was rendered. Tbe motion for substitution was amended by striking out so much as referred to tbe summons and complaint. Tbe movant certainly bad tbe right to abandon tbe whole, or any part of bis application; and tbe amendment was merely an abandonment of tbe part stricken out. We discover no valid objection to tbe amendment.

Tbe appellant appeared, and filed pleas, setting up that a copy of the summons and complaint in tbe original suit was not served on him; that be bad no notice of such suit; and that tbe court, in rendering judgment, did not have jurisdiction of bis person. Tbe judgment proposed to be substituted recites, that a copy of tbe summons and complaint was served on appellant. On a motion to substitute, appellant can not contest tbe truth of tbe recitals of tbe record, though be may show that the lost or destroyed record did not contain such recitals. On such motion, the court does not render, or revive the judgment; but merely supplies the record evidence of one already in existence. The whole purpose is to reestablish evidence of its existence, in itself conclusive, and to dispense with the necessity of resorting to secondary evidence. — May v. Parham, 68 Ala. 253. If the court is fully satisfied by the proof as to the correctness of the proposed substitute, it will order the judgment enrolled as it stood originally; and when enrolled, it possesses neither more nor less validity than the original judgment. —Atkinson v. Keel, 25 Ala. 551; Lilly v. Larkin, 66 Ala. 110; Ward v. State, 78 Ala. 455. On a proceeding to substitute a lost record, the court can not consider a collateral issue.

Affirmed.