Ex parte Henderson , 84 Ala. 36 ( 1887 )

STONE, C. J.

This is an application for mandamus to Hon. S. K. Mc/S'padden, chancellor of the N. E. Division, sitting in and for Talladega county, requiring and commanding him to entertain and pass upon the petition of relators, praying a correction of the note of testimony in the case of John Henderson, now revived in the names of his heirs-at-law, against Charles Pelham et al., lately pending and de’cided in said court, and now in'this court by appeal. A petition was filed in the court below, praying for such correction. The chancellor sustained a demurrer to the petition and dismissed it, on. the ground that there had been a final decree in that court and. an appeal to this court, which was still pending and undetermined.

The case made by the petition is in the nature of ah application for an amendment nunc pro tunc. All courts have the inherent power to correct their records, so as to make them speak the truth, even after final decree, and after appeal to this court. And that power exists until the judgment or decree'of the lower court becomes merged in the judgment of this court by affirmance. — Stephens v. Norris, 15 Ala. 79; Norris v. Cottrell, 20 Ala. 304; 1 Brick. Dig. 78 §§ 129 to 163; Moore v. Lesueur, 33 Ala. 237; 3 Brick. Dig. 577-8. The chancellor erred in the reason he gave for his ruling.

The petition was prima facie sufficient, and the demurrer filed, was a sufficient appearance to dispense with notice. •Demurrer can not be filed by amicus curiae. Tbe chancellor should so far consider tbe petition, as to pronounce on tbe proofs offered. — Steele v. County Comm’rs, 83 Ala. 304.

A rule nisi is awarded to the Hon. S. K. McSpadden, chancellor, to show cause why a mandamus shall not issue as prayed for, unless in tbe mean time be entertains and considers relator’s petition for amendment of tbe note of testimony. Tbe rule to be returnable on Tuesday, tbe fourth day of December, 1888.