Allen v. Bradford , 3 Ala. 281 ( 1842 )

COLLIER, C. J.

It is undoubtedly true, that the first judgment is irregular in being rendered in favor of one of the plaintiffs only.

It is no objection to the amended judgment, that no execution had issued within a year and a day, on the original judgment, but if a scire facias was necessary to entitle the plaintiff to an execution, when the amendment was made, the amendment •which was an entry nunc pro tunc, would not in this respect, place the plaintiffs in a better condition.

This Court has repeatedly holden, that a judgment nunc pro tunc may be entered, though no notice is given to the opposite party. Fuqua and Hewitt v. Carriel and Martin, Minor’s Rep. 170; Clemens v. Judson and Banks, ibid. 395. In point of law, no inconvenience can result from the want of notice, as such judgments are alwaj^s founded on matter of record, or some entry or memorandum in the’cause, and cannot be gain-sayed by showing to the Court extraneous facts. A judgment nuricpro tunc is merely consummating what the Court had ordered, or but imperfectly performed, and as it has a retrospective relation, nothing that has occurred post factum can be presented in opposition to it.

The declaration sufficiently shows in whose favor the judgment of the Circuit Court should have been rendered, and in the absence of any other memorandum or entry, furnished a sufficient warrant for the judgment nunc pro tunc. But if any thing farther was necessary, it might perhaps be intended from the recital in the record, that it was satisfactorily shown to the Court, the first entry was irregular through mistake; that the Court was satisfied by legal proof. See Thompson v. Miller, 2 Stew’t. Rep. 470; Draughan and others v. The Tombeckbee Bank, 1 Stew’t Rep. 66; Wilkerson v. Goldthwaite, 1 St. & P. 159; Mays, et al. v. Hassell, 4 S. & P. Rep. 222.

The consequence is, the judgment must be affirmed.