Taylor v. McElrath

Jun 15, 1859
Reporters:
Before:
Walker
A. J. WALKER, C. J.

It is indispensable to the successful administration of justice, that every court should have the power of supplying its lost records. The decisions of this court fully recognize tho existence of inherent power ‍‌‌​‌​‌‌​​​​‌‌‌‌​‌​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​‌​​‌‌​‌‌‌​‌​​​‌​​​‌‌‍in courts of record, to substitute copies of lost *333records, even after judgment rendered. — Williams v. Powell, 9 Porter, 493 ; Wilkerson v. Branham, 5 Ala. 608 ; McLendon v. Jones, 8 Ala. 298; Doswell v. Stewart, 11 Ala. 629. The probate court is a continuation of the old orphans’ court, with some modifications, and must have the power of supplying the lost records of that court.

[2.] We are not called upon to pronounce on the sufficiency of ‍‌‌​‌​‌‌​​​​‌‌‌‌​‌​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​‌​​‌‌​‌‌‌​‌​​​‌​​​‌‌‍the evidence to authorize the order made. The record sets out some evidence, which was adduced in support of the motion to supply the lost records; but it does not appear, and we are not authorized to affirm, that that is all the evidence upon which the judgment of the court below was predicated. We could not, therefore, reverse, even though we regarded the evidence found in the record as insufficient. ‍‌‌​‌​‌‌​​​​‌‌‌‌​‌​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​‌​​‌‌​‌‌‌​‌​​​‌​​​‌‌‍This court must always intend, until the contrary appears, that the judgments brought before it for revision are correct. The decision of the probate court, upon a question of fact falling within its jurisdiction, is certainly revisable; but, being presumed correct, cannot be pronounced erroneous, until we are assured we have before us the entire evidence upon which it acted, and can perceive the insufficiency of that evidence to justify ‍‌‌​‌​‌‌​​​​‌‌‌‌​‌​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​‌​​‌‌​‌‌‌​‌​​​‌​​​‌‌‍the judgment or decree rendered. — Bradley v. Andress, 30 Ala. 80; Williams v. Gunter, 28 Ala. 681; Smith v. King, 22 Ala. 559; Barnes v. Mobley, 21 Ala. 232.

[3.] What we have said, leads us necessarily to the affirmance of the judgment of the court below. But there was no exception to the decision of the probate judge; and we wish not to be understood as admitting, that the correctness of his ruling upon the ‍‌‌​‌​‌‌​​​​‌‌‌‌​‌​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​‌​​‌‌​‌‌‌​‌​​​‌​​​‌‌‍facts before him could be revised in this court, without an exception to it. — Smith v. King, 22 Ala. 558; Williams v. Gunter, 28 Ala. 681; Gordon v. McLeod, 20 Ala. 242; Reese v. Gresham, 29 Ala. 91.

Judgment affirmed.