Dickens v. Bush , 23 Ala. 849 ( 1853 )

GOLDTHWAITE, J.

The only question in this case is, whether the court erred in allowing a judgment nunc pro tunc to be entered upon the evidence as disclosed by the record.

The rule is well settled, that to authorize a judgment of this character, there must be either some matter of record, or some entry or memorandum made by or under the authority of the judge.—Andrews v. The Branch Bank, 10 Ala. 375.

The entry by the judge on his docket, of “jury and verdict for plaintiff, and fifteen per cent, damages,” affords no information as to the amount of the verdict, either by itself, or when taken in connection with the notes which were found on file with the papers in the cause. The verdict may have been for less than the amount of the notes.

It is urged, however, that as it appears from the entry of the judge, that fifteen per cent, damages were awarded, and the .cases were on appeal-from a justice, inasmuch as these damages are only given when it appears to the judge that the appeal was taken for delay, it shows that the verdict was at least for the amount of the judgment rendered by the justice. The answer to this is, that the entry establishes simply that, in the opinion of the judge, the appeal was taken for delay; and as the facts on which the opinion was based, do not appear, it, at the most, is but a conclusion ; and this court could not, in the absence of the facts upon which it was founded, say that it was correct. In'other words, we cannot say whether the judgment of the court in awarding damages was right or wrong; and to amend a record upon evidence of this character would be going beyond all precedent.

The judgment must be reversed, and the cause remanded.