45 Ala. 349 | Ala. | 1871
This is a suit instituted under our statutes to substitute the petition in a proceeding in the court of probate of Coffee county, alleged to have been filed íd said probate court in an application for the sale of lands by an executor, for the payment of the debts of the deceased, when there was no power given by the will to make such sale; which petition is alleged to have been recorded, and the record subsequently destroyed by the burning of the court house in which the records of said court were kept. This law is in these words: “If the records of any judicial proceeding, suit, judgment, or decree, of any justice’s, circuit, or chancery court in this State, or any part thereof, has been or may hereafter be lost, burned, or otherwise destroyed, the same shall be substituted by order of such court, upon the best evidence that can be adduced, and which shall be satisfactory to the court,- of the former existence and contents of such judgment or decree; and when substituted shall have the same force and effect with the original judgment or decree.” — Rev. Code, § 648. This
On the trial in the probate court, as the bill of exceptions shows, the applicant, Shiver, “proved by B. W. Starke that he was the attorney for Samuel Shiver, executor', in the management of the estate of Jacob Shiver, deceased; that he drafted and prepared a petition for the sale of the real estate belonging to said Jacob Shiver, deceased, for the applicant, said Samuel Shiver, on the 3d day of January, 18ól; that said petition was verified by the affidavit of applicant, and filed in the office with the judge of probate for Coffee county, for the purpose of obtaining an order from the said court of probate for the sale of said real estate, on the 3d day of January, 1861; that the petition set out by plaintiff in this motion is a copy in substance and form of the petition filed by witness, as attorney as aforesaid for plaintiff, in the office of said probate court, on the 3d day of January, 1861.” It was further
The application or petition for the sale of lands is an essential part of the proceedings, in order to give the court jurisdiction. — Eev. Code, §§ 2222, 2079, 2080, 2081, 2082, 2083, 2086; Satcher v. Satcher’s Adm’r, 41 Ala. 26, 39. It is a part of the record, and when lost or destroyed it may be substituted, upon sufficient proof. It needs only a substantial copy of the record intended to be enrolled, to justify the court in allowing its substitution. — Adkinson v. Keel, 25 Ala. 551. It must also be consistent with the portion of the record remaining undestroyed. — Bishop’s Heirs v. Hampton, 19 Ala. 792. That is the case here.
The bill of exceptions here shows that the copy of the petition sought to be substituted was “ proved ” to be a substantial copy of that which had been lost or destroyed, and it was also proved that the original had been lost or destroyed. A fact “ proved ” is a fact established by the evidence so as to put its certainty beyond reasonable controversy. Such evidence ought to be satisfactory to the court. When this is the case, the law commands that the copy “shall be substituted by order of the court” for that which has been lost or destroyed, where all the evidence adduced at the trial is shown in the bill of exceptions, and it appears that the court below has mistaken its force, and denied to it its legitimate effect; in such a proceeding as this, it is error.
In this case, the evidence adduced was quite sufficient to have justified the allowance of the order for the substitution asked in appellant’s petition in the conrt of probate; and the substitution ought to have been allowed upon the evidence adduced.
It is, therefore, the order and judgment of this court, that the judgment of affirmance rendered in this cause by the said circuit court of Coffee county in this State, at the spring term thereof, in the year 1870, be reversed, and that this cause be remanded to said circuit court. And it is further ordered and adjudged by this court, that said circuit court reverse its said judgment of affirmance of said judgment of said court of probate of said county of Coffee, and remand this cause to said cour-^ of probate of said