Ward v. State , 78 Ala. 455 ( 1885 )

CLOPTON, J.

Cumulative to the inherent power which the court possesses by virtue of its original and plenary jurisdiction, statutory provision is made for the substitution of the record of any judicial proceeding, suit or judgment of the Circuit Court, which may be lost, burned, or otherwise destroyed. The party proposing to make substitution is required to give the opposite party at least ten days’ notice before the term of the court at which such motion is proposed to be made; which notice shall state the court in which the judgment proposed to be substituted was rendered, the amount and date of the same, and payments, if any; and such notice shall be the basis of the motion. It is not required that notice shall be given of the evidence intended to be offered ; but the substitution may be made by order of the court, upon the best evidence that can be adduced, and which shall be satisfactory to the court, of the former existence and contents of the record. Code, § 555; Lilly v. Larkin, 66 Ala. 110.

Notice of the proposed motion was served on the appellant more than ten days before the term of the court at which it was proposed to make the substitution. Copies of the proceedings, orders, records and judgment proposed to be substituted, were appended to the notice, showing the date of each, and the particular case in which they arose. A notice, substantially similar, has-been held sufficient. — Pruitt v. Pruitt, 43 Ala. 73.

The appellant appeared, and, without objecting to the sufficiency of the notice, filed objections going to the power and jurisdiction of the court, to the sufficiency of the evidence, and also to the sufficiency of the-record proposed to be substituted, to sustain the judgment of conviction. The affidavit of the clerk, which accompanied the notice, was sufficient, in the absence of countervailing evidence, to authorize the substitution. But the record recites that, in addition, oral evidence was offered, which, the contrary not appearing, will be presumed to have been satisfactory to the court, and sufficient.

On the motion to substitute, the legal sufficiency of the récord, as proposed to be substituted, to. sustain the final judgment’, does not arise. Whether the proceedings were” regular or irregular, a substantial copy of the lost or destroyed record must be substituted; and when substituted, it has the same effect and efficacy the original would have had. The question of its sufficiency to sustain the conviction must be determined on appeal from the judgment of conviction.

Affirmed.