144 So. 818 | Ala. | 1932
This suit is by the personal representative of Nellie Webb Stewart, deceased, against the personal representative of Hawkins Westmoreland, deceased, for damages for the wrongful killing of appellant's intestate.
There was a plea to abate the action, to which demurrers were directed and overruled.
It is recited that there was taken by plaintiff, a "nonsuit with a bill of exceptions in order to review the several rulings before the court"; thus is presented the question of the sufficiency of the final judgment presented by the record proper.
Final judgments that will present for review the rulings of the trial court were considered in De Graffenried v. Breitling,
The question which recurs is that of jurisdiction here to review the action of the lower court upon the record proper that is presented. It requires no argument to show that the judgment exhibited was not the judgment of the lower court "granting" plaintiff's motion for a nonsuit "and dismissing the case." Alston v. Marengo County Board of Education, *618
The appellee recognized the effect of the foregoing decisions, and moves here for amendment of the judgment nunc pro tunc. The inherent power is in the circuit court to amend its own record so as to make it speak the truth, within the rules that govern actions in that court and in such case. Sections 7854, 7855, Code 1928. The authorities are all collected in 10 A.L.R. 527. Drake Wife v. Johnston Seats,
The rendition of a judgment nunc pro tunc on due motion therefor was sustained as authorized by the record in the rendition, in the trial court in recent cases of Lockwood v. Thompson Buchmann, supra; Cosby v. State,
The computation of time for review was considered in Ex parte Louisville N. R. Co. (Langston v. Louisville N. R. Co.),
It is apparent from these authorities that appellant's motion for amendment in this court of the judgment nunc pro tunc should be denied, and that is the order. 34 C. J. p. 7, §§ 204, 205; p. 78, § 219; p. 79, § 220; 10 A.L.R. 527, note.
The appellee's motion to dismiss the appeal, for that the judgment exhibited by the record proper was not final and presented no question for review, is granted, and the appeal is dismissed.
Appeal dismissed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.