43 Ala. 73 | Ala. | 1869
The question presented in this case is the sufficiency of the notice of the motion to substitute another record, in the place of one lost, under the provisions of the statute for the substitution of lost records. Acts, 1865-6, pp. 48, 49.
Section 2, of the act, requires: “ That the party proposing to make such substitution, shall give the opposite party notice, which shall be executed at least ten'days before the term of the court, at which such motion is proposed to be made, which notice shall state the court in which the judgment or decree proposed to be substituted, was rendered; the amount and date of the same, as nearly as may be, and any payments, with the date thereof, which may have been made thereon, and which said notice shall be the basis of the motion in said cause.”
The appellees demurred to the notice given in the court below, assigning several grounds of demurrer, in substance as follows : “ The notice was not sworn to ; no affidavits were served on the defendants to prove that the record, proposed to be substituted, was correct; the notice was not issued by the plaintiff, but by the probate judge; more than one year- had intervened between the alleged rendition of the judgment and the notice of motion to substitute, without evidence or averment that any execution had
The mode of proceeding, to substitute a lost record, prescribed .by this court, in Adkinson et al. v. Keel, use, &c., 25 Ala., p. 551, and McLendon v. Jones, 8 Ala. 298, refers to the inherent power of the courts to make such substitution under the common law.
Here we have an act of the legislature, conferring express authority and prescribing the manner of its exercise. It is immaterial whether the notice is issued by the party desiring the substitution, or by the court in which the substitution is to be made. It is not only proper, but becoming, that the court should issue the notice, because it is more conducive to order. The act does not require the notice to be sworn to, nor that affidavits of the correctness of the record proposed to be substituted, should accompany it.
The notice in this case was issued by the probate judge, and executed by the sheriff. It informed the defendants, as the administrators of the estate of William Pruit, deceased, that the plaintiff, in her own right, as one of the distributees, and as the guardian of Sarah J. Pruit, also a distributee of said estate, would move the probate court of Lawrence county, on a certain day, to supply the lost record of the final settlement and distribution of said estate, as made by said administrators, at a certain time, and duly recorded in said court.
There was appended to this notice, and directed to be made a part of it, a copy of the record proposed to be substituted. The act does not require the amount of the judgments to be verified in the notice, nor does it require that the exact amount should be stated in the supplied record, but only as nearly as may be, because it might be impossible to ascertain the precise amount.
Any party interested had a right to commence and prosecute this proceeding. The object was single, and the one question to be determined was, whether the proposed record should be substituted or not. It was, therefore, immate
The intervention of one year between the alleged rendition of the judgments and the notice, was not a ground of demurrer. The proposition was to establish the record of certain judgments, of a certain date, which had been lost. Any rights of the defendants, on account of the non-issuance of execution, could be maintained when the judgments were sought to be enforced.
On the hearing of the motion the court is to be satisfied,, by the evidence adduced, of the former existence and contents of the judgment or decree proposed to be entered of record, and for this purpose may receive any legitimate testimony, written or oral.
The notice given was a sufficient compliance with the statute, and the probate court erred in sustaining the demurrer. The judgment is reversed, and the cause remanded.
