Prinz v. Weber

126 Ala. 146 | Ala. | 1899

HÁBALSON, J.

When the claim of exemptions of the defendant came on to he tried in the circuit court, the plaintiff offered the proceedings and papers that had been substituted before the justice, Fuller. The defendant objected to their introduction, on the grounds, 1st and 2d in substance the same, because notice of the substitution of papers was not sufficient to authorize judgment of substitution in justice’s court; 3d. Because they were not original papers, but were substituted papers and were irrelevant and immaterial; 4th, because notice from justice of the peace was issued to Max Merx, publisher of the Alabama Tribune. The court sustained all these grounds of objection except the 3d, to which ruling the plaintiff excepted and took a non-suit with a bill of exceptions. It will be observed, that the objection to the evidence raised and passed on by the court, was not that it was illegal and irrelevant, but on grounds, simply questioning the regularity of the proceedings of substitution before the justice. The court sustained these grounds and based its decision on them. We must confine our decision to the grounds of objection raised.

It appears from the bill of exceptions, that on June 9th, 1892, the complainant made his motion in said Justice Fuller’s court to substitute said papers, and the defendant being a non-resident, it was ordered that notice should be given to her, of the pendency of said application by publication in the “Alabama Tribune,” a newspaper published in Cullman, and the trial was adjourned' until after such notice should be given. On the 13th of February thereafter, the cause having been continued until then, the justice rendered his order substituting said papers. In the minute entry of the judgment, it is recited, “it being shown to the satisfaction of the court that notice of the time and place of this hearing to substitute the original papers in said cause has been duly given by publication of a notice thereof for three successive weeks in the ‘Alabama Tribune/ a weekly newspaper published in said county, in accordance with the former order of this court, and that said notice was so given before February 8th, 1892,” etc.- — judgment of substitution was rendered. A copy of the notice and an affidavit of its publication according to the order thereof, made by the publisher of the “Alabama TTibune,” are set out in the bill of exceptions. This notice, and itu puhiication appear to be full and sufficient, and was not subject to -the objection raised against it.—Meyer v. Keith, 99 Ala. 519; Diston v. Hood, 83 Ala. 331; Code, § 2649.

'The 4th, and only other ground of objection, was, as we have seen, -that the notice from the justice of the peace was issued to Max Merx, publisher of the “Alabama Tribune.” This objection as appeal’s is without foundation in fact, and was improperly sustained. The ■objections were improperly sustained.

2. The motion here made, on ex parte aid-davits, to .expunge the judgment entry in 'this case, because as •alleged the clerk of the court, after adjournment of the term, struck out the original and approved minutes, and inserted in lieu thereof another and different judgment, «cannot be granted. The minutes -of the court as certified to us in the transcript import absolute verity and ifcheir correctness cannot be questioned in the manner attempted in this -case.—12 Am. & Eng. Encyc. Law, 147, V., 149; 1 Black on Judgments, §§ 246, 273, 276, 368; U. S. v. Trockmorton, 98 U. S. 61. If it is desired to correct the judgment, so as to restore the one originally entered, for the reasons set out in the motion and affidavits to here expunge from the transcript the judgment entry appearing as certified, it sh-o-uld be done by another proceeding instituted for the purpose.

The judgment will be reversed, an order here entered setting -aside the non-suit, and remanding the cause.

Reversed, non-suit set aside, and remanded.