Andrews' Adm'r v. Branch Bank at Mobile , 10 Ala. 375 ( 1846 )

COLLIER, C. J.

The record does not show that any judgment was rendered in this cause until February, 1846. There was then nothing remaining in the county court from which a writ of error could be prosecuted previously. Whatever may be the law, where there is an imperfect or irregular judgment, which is afterwards perfected, or legalized by judgment nunc pro tunc, we think it competent to sue a writ of error to revise a judgment in form nunc pro tunc any time within three years after its rendition, where nothing bearing the semblance of a judgment had been previously rendered. The opposite conclusion would leave the defendant remediless, without any fault on his part. It is clearly incumbent upon the plaintiff to obtain a judgment upon which an appeal will lie before he can insist upon the statute of limitations against its revisal when amended.

It is certainly true, that to authorize a judgment to be rendered nunc pro tunc, there must be some matter of record, or memorandum of the court. [Thompson v. Miller, 2 Stew. Rep. 470; Brown v. Bartlett, 2 Ala. Rep. 29.] And the regularity of such judgment may be revised on error. [Wilkinson v. Goldthwaite, 1 Stew & P. Rep. 159.]

In Alexander’s adm’r v. The Branch Bank at Montgomery, 5 Ala. Rep. 465, it was held, thatthe Bank could not by notice and motion, as in ordinary cases, recover a judgment against the representatives of the deceased maker of a promissory note. The remedy by statute was summary and extraordinary — authorizing the proceeding against the “maker or indorser of any note, bill,” &c., and “could not be extended by construction to the representatives of a deceased debt- or.” See also, Murphy’s adm’r v. The Branch Bank at Mobile, 5 Ala. Rep. 421.

It has been so often decided as to be the settled law of this court, that where a judgment is rendered by default, or on nil dicit in favor of a Bank, upon motion, the record must show the liability of the defendant for the debt, or demandj and that the facts were proved which gave the court jurisdiction. [1 Minor’s Rep. 25; 8 Porter’s Rep. 99, 104, 360; 4 Id. 181; 9 Id. 471; 1 Ala. Rep. N. S. 268; 3 Id. 153; 5 Id. 26.]

By a reference to the judgment in the case before us, it will be seen that it is obnoxious to all, or nearly all the objections which have been taken to it. The judgment nunc pro tnnc is therefore reversed.