Ware v. Kent

123 Ala. 427 | Ala. | 1898

McCLELLAN, C. J.

Joshua Ware had title to the land in suit by patents from the United States. The plaintiffs are his heirs at law. The defendant claims title through an execution issued on a judgment against said Joshua, the levy thereof upon this land, its sale thereunder and the purchase at such sale by defendant’s grantor to whom the sheriff executed a deed. The judgment upon which this execution issued was rendered by a competent court but not entered by the clerk of the court,-dr imperfectly entered. Subsequent to the sale under execution, the sale and conveyance by the purchaser thereat to this defendant and to the institution of this suit, the plaintiffs in that cause, one of whom was such purchaser and grantor, moved the court to enter said judgment nunc pro tunc, or rather to amend its imperfect entry nunc pro tunc. This motion in due course was granted, and a judgment in all respects regular and formal was entered of record as of the original rendition of judgment in the cause.

On the trial of this cause a transcript from the record of the court in which said judgment had been rendered, showing the pleadings in the cause, the bench notes of the judge rendering judgment by default and assessing the damages and directing judgment for the amount thereof, the imperfect entry made by the clerk of the judgment rendered as shown by the bench notes, the motion to amend the entry nunc pro tunc, the order of the court granting the motion and entering or directing the entry of formal judgment, and the formal judgment so entered, was offered in evidence, and admitted against the objection of the plaintiffs. And this action of the court is really the only matter presented for review by this appeal, since all the other rulings excepted to, including the finding and conclusion of the judge sitting without a jury, and the judgment rendered thereon, were proper or not as the admission in evidence of this transcript was proper or not.

That the transcript, or at least so much of it as sho wed the entry of a formal and regular judgment having effect as of the original rendition of judgment, was properly received in evidence, there can, Ave think, be no serious doubt. The objections to it Avere Avholly untenable upon íavo distinct grounds: In the first place, the correctness of the court’s action in entering the judgment nunc pro tunc could not be inquired into or impeached collaterally by objection to the introduction of its record in this other cause. The poAArer resides in every court to correct and amend the entries on its minutes nunc pro tunc, and no court can incidentally question the verity of the record as amended. The court receiving the amended record must take it as it is certified by tin1 proper officer, and is not at liberty to look beyond it to inquire Iioav it came to be as it is. The remedy against an improper amendment is by appeal, or some other method of direct attack, and in no case by collateral and incidental assault.—Jones v. Lewis, 8 Iredell’s Lair, 70, s. c. 47 Am. Dec. 338; State v. King, 5 Ired. Law, 204; Galloway's Admr. v. McKeithen, Id. 12, s. c. 42 Am. Dec. 153; Hamilton v. Seitz, 25 Pa. St. 226, s. c. 64 Am. Dec. 694; 1 Freeman on Judgments, § § 67, 74.

But if the rule were otherwise and admitted of the collateral attack of nunc pro tunc judgments in respect of the proof upon which they are based, the result would be the same in this case. The amendment here made was upon record or quasi record evidence of the rendition of a judgment at the prior time and of the failure of the clerk to make proper entry thereof on the minutes, and this record evidence supplied every fact necessary to the entry of a perfect judgment. — 1 Freeman on Judgments, § § 61, et seq.j 3 Brick. Dig., pp. 577-8; Nabers’ Admr. v. Meredith et al., 67 Ala. 333, and cases there cited.

No notice of the motion to amend is necessary, as was expressly decided in Nabers’ Admr. v. Meredith et al., supra.

The effect of the amendment was to substitute for the imperfect entry made when the judgment was rendered the perfect entry directed by the order granting the motion to amend as of the time of the rendition and imperfect entry; and the matter now stands, as between the parties to that suit and their privies, precisely as if a formal and perfect judgment had been duly entered in the first instance. The very purpose of such amendments generally is to support proceedings already taken under the original entry; and the effect here is to impart regularity and formality to the execution issued on the jucíg-, ment imperfectly entered and to all proceedings under it. — 1 Freeman on Judgments, § § 67, 74.

The court properly received the transcript in evidence; and, as we said above, the propriety of all its other rulings necessarily follows.

Affirmed.