Tanner v. Hayes

47 Ala. 722 | Ala. | 1872

B. E. SAEEOLD, J.

The appellant moved the probate court to amend its record nunc pro tunc, so as to show that the estate of John H. Jones, which he represented, was declared insolvent oh the 23d of March, 1868, instead of the 25th of said month and year, as appears from the record.

In support of this motion, he offered the testimony of Thomas J. Cox, to the effect that he was the clerk who made the entry proposed to be amended, and that he wrote it from and by the authority of a docket entry made by the probate judge to the following effect: “Est. J. Haywood Jones, declared insolvent. This day said estate declared insolvent. Ordered that adm’r, W. P. Tanner, make settlement 25th April. Ord. that pub. be made, March 23, 1868.” The court held the testimony inadmissible.

The application of the administrator was not made under the authority of any particular statute, but it invoked the aid of the court under the general law applicable to the amendment of judgments nunc pro tunc. It is a well established rule, that judgments can only be amended, or rendered, nunc pro tunc, when there is sufficient matter apparent on the record or entries of the court to amend by. — Hudson v. Hudson, 20 Ala. 364. Parol evidence can not be admitted to supply the deficiencies of the record evidence. The coiut did not err in excluding the testimony of Cox. — Harris v. Martin, 39 Ala. 556.

Every court must have authority to correct its own entries, so as to make them speak the truth, even after the adjournment of the court, on sufficient evidence. — Coffey v. Wilson & Gunter, 2 Ala. 701. The source of this inherent power is justice, and therefore the courts must have some discretion in altering their records, after the time when they are said to import absolute verity. They sometimes impose terms on the party asking this indulgence, in order that it may not operate to the prejudice of others, and refuse it altogether, after a considerable lapse of time, where the delay has been owing to the applicant or his attorney. In other cases, the amendment or rendition is made to operate only from the date of the application. Tidd’s Prac. 965, 972. It is proper that a party making such an application should assign some reason why he would be injured if the correction is not made.

The record evidence in support of the motion in this case is such, that if the court had decided reversely, we would not disturb its judgment. But inasmuch as no reason is given why the amendment is sought, and the rights of others maybe prejudiced, and the presumption is legitimate that the term of the court commencing on the 23d of March was continued or protracted until the 25th, we sustain its action.

The judgment is affirmed.