6 Ala. 73 | Ala. | 1844
The conclusion to which we have come on the preliminary question, makes it decisive of the case, and therefore, we shall express no opinion on the question, how far the answer, standing alone, and unexplained by a viva voce examination, is sufficient to sustain the judgment.
In Gaines v. Bierne, [3 Ala. Rep. N. S. 114,] we held that the answer of the garnishee, whether viva voce, or in writing, is no part of the record, unless made so by bill of exceptions, or incorporated in the judgment by reciting its substance.
It is supposed, however, that the rule then declared, has been modified by the subsequent decision of Fortune v. State Bank, [4 Ala. Rep. N. S. 385,] where an answer in writing was referred to, and the judgment reversed, because not sustained by it.— The judgment entry in that case, recited, that Fortune had answered at a previous term, that he was indebted, and as there was at that term, no entry stating what that answer was, it was of necessity referred to; for otherwise, there was nothing for the action of the court when it gave the judgment. Absolute verity must be accorded to the records of a court, when it states its own action, or its own conclusion, but it by no means follows, that the same credit is due, when it states what was done at a previous term, unless, indeed, the judgment of the court is directed to the ascertainment of the fact, which it undertakes to assert. In such a case, it is probable, the question would be settled by an entry nunc fro tunc.
In the present case, there is nothing whatever, besides the circumstance of finding the answer in the transcript sent to' this court, to induce the conclusion that it was unexplained by a viva voce examination; but, conceding the answer is insufficient to sustain the judgment, we would then be forced to refuse credit to the
Judgment affirmed.
