Glass v. Glass , 24 Ala. 468 ( 1854 )

CHILTON, C. J.

1. It is objected, that the notice in this case is defective, in failing to set out the original motion made in the County Court. This objection, however, cannot prevail, as the motion in the Circuit Court is to amend the judgment rendered by the County Court nunc pro tunc, and so far as this amendment is concerned, no notice is necessary. — Allen & Deane v. Bradford & Shotwell, 3 Ala. 281.

2. Neither do we entertain any doubt, that a proper construction of the act of 1849-50, establishing Courts of Probate, &c. (see Pamphlet Acts 35), authorizes the Circuit Court, to which the papers &c. in the cause have been transferred, to make amendments nunc pro tunc of the judgments of the County Court, whose jurisdiction over the cause, by said act, is transferred to the Circuit Courts respectively.

3. The motion in the Circuit Court is in the nature of a scire facias to revive the judgment, which it was also proposed to have entered nunc pro tunc, in the name of Jonathan Glass, the executor of Williamson, who had departed this life since the rendition of the imperfect judgment by the County Court. We think there was no impropriety in uniting with the scire facias to revive a notice of the motion to amend. The two motions, if the court be so inclined, may be taken up and disposed of together ; and we are aware of no rule of practice, which forbids that the party should have a.judgment of revivor at the same term to which his scire facias is made returnable.

4. As to the objection, that the facts did not warrant the amendment, we have only to say, that the entry shows it was made to appear to the court that a judgment had been duly rendered by the County Court, which the clerk had omitted to enter. We must intend that it was made to appear by the proper evidence : it may have been by the entry of the judge on the motion docket in response to the motion, which has several times been held sufficient to amend by. If the evidence had been insufficient, the defendant could, and ought to have shown it by bill of exceptions. —3 Ala. 281, and cases cited; Harris v. Bradford, 4 Ala. 215.

5. It is insisted by the counsel for the plaintiff in error, that the motion to amend and revive was discontinued by failing to prosecute it until two terms had elapsed from the term at which it was submitted. The record, however, shows it was regularly continued from term to term down to the time of trial.

We perceive no error in the record.

Let the judgment be affirmed.