Hudson v. Hudson , 20 Ala. 364 ( 1852 )

DARGAN, C. J.

On the second Monday of August, 1850, Ann Hudson, by her guardian, F. P. Hale, moved the Court of Probate of Tuskaloosa county to enter a decree of final Settlement of the estate of James Hudson, deceased, against jotó¿ and Nancy Hudson, administrator and adminis-tfatrix?íQÍ,S£|d estate, by which a sum of money was ascertained and Awarded to her, and which should have been en'tered'bn Ahd second Monday in April, 1847. In support of her motj,oh^ she introduced the record of said cause, from wliibh it appears, that the plaintiffs in error were administrator and administratrix of said estate, and that previous to April, 1847, the estate was in progress of final settlement, and that the cause had been continued several terms previous thereto.

At the December Term, 1846, the record sho .vs that the cause was continued until the next term of said court; and this was the last entry that appeared upon the minutes of the court, or upon any book of record; but amongst the file of papers in the cause, there appeared a paper, purporting to be a final decree, made by Samuel D. J. Moore, who was judge of said court at the time the paper bears date, by which the amount in the hands of the administrators, and the share thereof of each distributee, was ascertained. This paper purports to be signed by the judge, and on the back of it was the following endorsement: “Decree, Estate of James Hudson; Filed 2d Monday in April, 1847. S. D. J. Mooee, Judge.” It did not apjjear that this decree had ever been recorded or entered upon the minutes of the court, nor that any note or memorandum of any final decree had ever been made upon any book of the office. This was the only evidence introduced to show that a final decree had ever been made in the cause, and the question is, was it sufficient to authorize the court to render the decree nunc pro tunc f

We think that no judgment can be amended, or one rendered nunc pro tunc, unless such amendment or rendition of judgment be authorized by matter of record, or some entry made by or under the authority of the court, which entry must be shown by the record of the cause, or at the least, by some book belonging to the office of the court and required to be there kept by law. None of the decisions of this court go further than this, and to go one step further would, in our judgment, be productive of the most mischievous consequences. See 2 Stewart’s Rep. 470; Moody v. Keenar, Porter, 252; Brown v. Bartlett, 2 Ala. 29; Armstrong v. Robertson et al., ib. 164. We must, therefor the paper purporting to be a final decree can as part of the record. I will not undertake, ai say what papers shall be so considered before ti is complete, and when the cause is progressing, in fieri. But I think I may say, that if the papl^as^ot ne=_. cessarily a paper in the cause, the custody of which berongs to the keeper of the records, and the record does not show that it was made so, that is, made part of the record by the act of the court, then it cannot be considered a record or a part thereof.

If we try this paper by this test, we must reject it as record evidence. No part of the record shows that a final decree was ever rendered. This is shown alone by the paper itself. Nor does the record show that this paper was ever made part of the record by the act of the court, and clearly it is not a paper necessanly belonging to the cause, for there is no law requiring the Probate Judge to render his decrees in writing. He may orally pronounce bis decrees, wbicb will become tbe judgments of tbe court when transcribed on tbe minutes, or be may write them out and direct tbem to be transcribed; and .possibly, if tbe record were to show that tbe decree bad been rendered in writing, and tbe clerk directed to transcribe it, we might bold sucb a decree, so directed to be recorded, as record evidence. But a paper purporting to be a decree, and wbicb is shown to be so by no part of tbe record, cannot be considered as part thereof. To bold that a paper, when not necessarily a part of tbe papers of tbe cause, could prove itself to be part of tbe record, in tbe absence of all other proof, would not only be an innovation upon tbe rules of evidence, but open a door to serious mischiefs.

Our conclusion is, that tbe instrument purporting to be a final settlement and decree, cannot be considered as part of tbe record, and consequently that tbe Probate Court erred in rendering tbe decree nunc pro tunc, for. tbe reason, that excluding this paper, there is no evidence whatever that a final decree bad ever been rendered.

Let the judgment be reversed.