Lilly v. Larkin , 66 Ala. 122 ( 1880 )

SOMERVILLE, J.

In this State, the English rule has always been followed, in reference to making amendments nunc pro tunc of court records. The uniform practice has been, to allow such amendments on ex-parte application, without notice to the opposite party. But they can be had only on matters of record, or quasi of record, and parol evidence is never admissible in aid of such a motion; although a contrary and more liberal rule has been adopted in a majority of the American States.—Summersett v. Summersett, 40 Ala. 596; Nabers v. Meredith, at present term ; Freeman on Judg; § 72. But the practice is well settled, to admit such evidence on applications to substitute records, which are proved to have been lost or destroyed.—Adkinson v. Keel, 25 Ala. 551; Code (1876), § 555.

Section 702 (sub-div. 7) of the Code authorizes judges of probate to “ complete the minute-entries and decrees in causes in their courts, when the same are incomplete on account of their failure to make the necessary entries at the time when they should have been made ” ; and such entries are declared to be “ as valid and binding, as if they had been made at the proper time.” This statute is clearly declaratory only of a common-law power possessed, inherently by all courts of record. It fails to designate the character of the evidence, by which such amendments are to be established. Parol evidence is not authorized, expressly or by implication, by any words of the statute. The entries authorized to be completed, are were amendments nunc pro tunc, such as have heretofore been permissible under the common-law practice ; and a sound construction compels us to 'confine the evidence admissible in such applications, to such as was admissible under the English rule. This rule admitted, as we have above stated, only record, and not parol evidence.—Thompson v. Miller, 2 Stew. 470.

It does not appear that the Probate Court acted on this principle, in the proceedings below. The records should have been first substituted, on proper application, and after notice, including all papers on file pertaining to the settlement of the estate.-Lilly v. Larkin, at present term. After this was done, the entry made on the books of the probate judge, dated July 15,1861, would have been sufficient to have authorized the proposed amendment, so far as the settlement of that date.was concerned. — 1 Brick. Dig. p. 72, §§ 18,27; Nabers v. Meredith, at present term.

Reversed and remanded.

Beickell, C. J. not sitting.