Smith v. Redus

9 Ala. 99 | Ala. | 1846

COLLIER; C. J.

By the act of 1807, it is enacted that no summons, wrif, declaration, return, process, judgment, or other proceedings shall be abated, arrested, quashed, or reversed, for any defect, or want of form, &c.; audit shall be competent to amend “ imperfections, defects, and want of form, (other than those which the party demurring shall express, &c.,) or any mistake of the Christian name, or surname of either party, sum of money, quantity of merchandize, day, month, or year, in the declaration or pleading, the name, sum or quantity, or time, being right in any part of the record or proceedings.” [Clay’s Dig. 321, § 50 ] Here is an express authority for amending the names of parties to a judgment, so as to make the judgment conform to the writ and declaration. Now to inform the court that a judgment which is variant in this respect, from the preceding parts of the record, we can conceive of no objection to showing, by extrinsic proof, that it was intended to apply to a particular case. If such evidence was not admissible, the statute would be a dead letter, where the names of the parties, and the amount for which the judgment was rendered, varied from the writ or pleadings. The judgment then being amendable upon the proof made, there was no necessity to make the amendment in fact — it must accordiug-to the practice under the statutes of jeofail, be considered as perfected. [See Catlin, Peeples & Co. v. Gilder’s Ex’r. 3 Ala. Rep. 536; Patterson & Hinson v. Burnett’s Adm’r, 6 Ala. Rep. 844.] This view being decisive of the first point made for the plaintiff in error, we need not consider to what extent records are conclusive in themselves, or whether, and under what circumstances parol proof may be rer ceived to explain, contradict or identify them.

In Isaacs, by her next friend, v. Boyd, et al. 5 Ala. Rep. 388, it is said, that a prochien ami, “ is not authorized to receive the amount which may be recovered- by the infant, but the same should be paid over to a lawful guardian, alone, as it might otherwise be squandered, and the infant receive no benefit.” See also 10 Petersd. Ab. 579. No inconvenience or injury can result to the defendant in the judgment, from the limited powers of the next friend, although the infant may have no regular guardian. It may be considered as undoubted law in this State, that the clerk of a court is authorized by statute, to receive of a defendant, against whom a judgment is rendered in his court, the amount of the same; .and this as well before as after an execution has issued. [5 Ala. Rep. 678.] The defendant then, need not he troubled to retain the money, or charged with interest, because the plaintiff is not competent to receive it; for immediately upon the rendition of a judgment] he may pay the amount to the clerk.

There is no error in the record; the judgment is consequently affirmed.