Wiggins v. Steiner , 103 Ala. 655 ( 1893 )

COLEMAN, J.

At the June term, 1892, of the circuit court of Butler county, Steiner & Co., appellees, recovered a judgment in ejectment against Wiggins, the appellant; and in May, 1893, the clerk issued a writ of possession commanding the sheriff to put the plaintiffs in possession of the land. Thereupon the appellant., Wiggins, who was the defendant in the ejectment suit, filed a petition in the circuit court, and prayed the court to set aside and annul the judgment in ejectment, and also the writ; of possession issued by the clerk. At the Spring term of the court, upon motion of 'the appellees, the petition was denied, and stricken from the file. All the grounds except one, upon which the petition was predicated required extrinsic proof — facts dehors the record — to sustain them. The law is well settled that a court is without power to alter, or annul final judgments or decrees after the close of the term at which they were rendered, except as to mere clerical errors or omissions. It is equally well settled that a court at any subsequent term, may make an order vacating and annulling a judgment or decree void upon its face. — Buchanan v. Thomason, 70 Ala. 402 ; Carlisle v. Killibrew, 89 Ala. 329; Baker v. Barclift, 76 Ala. 417; Kohn v. Haas, 95 Ala. 478.

One of the grounds stated in the petition is, that the judgment in the ejectment suit which the petition purported to set out, was void upon its face. The judgment as shown in the petition, after stating the case and character of the action, is as follows: “Came the parties by attorneys, and issue being joined thereupon carpe a jury of good and lawful men, to-wit, M. A. Kay and eleven others, who being duly sworn and empanelled on their oaths do say, we the jury find .for the plaintiff for the lands sued for. It is, therefore, considered by the court that the plaintiff recover of the defendant the lands sued for, to-wit: E. i of S. E. i& S. W. ioí'S. E. i & S. E. i of S. W. i, section 26, township 7, range 13, for which let writ of possession issue.” The precise objection to the judgment is, that it fails to designate the county or district in which the land is situated, and that the court must take judicial knowledge, that there are two bodies of land lying in the State of Alabama, answering the description contained in the judgment, one lying west of the Huntsville Meridian and the other east of the St. Stephens Meridian, the one in Franklin county and the other in Butler county, where the judgment was recovered., We have been referred to the cases of Long v. Pace, 42 Ala. 495, and Commissioners Court v. Russell, 25 Ala. 481, as sustaining the proposition. These two cases were commented on in the case of Chambers v. Ringstaff, 69 Ala. 140, and the rules declared in the two preceding cases are modified in their application. The judgment recites that “issue was joined.” The presumption is that the issue was joined upon the general issue, or plea of ‘ ‘ not guilty, ’' which is an admission that the defendant was in possession of the lands sued for. The complaint in the ejectment suit is not set out in the petition. The judgment recites that the plaintiff recovered the lands sued for, to-wit, • &c. We cannot say the complaint did not describe the county or district in which the lands were situated. If so, the verdict of the jury would be referred to the complaint, and on motion could be amended at any time nunc pro tunc, so as to correspond with the complaint. That such an amendment would be proper, was held in Taylor v. Harwell, 65 Ala. 1, 15.

It may be that the complaint conformed to the rule laid down in Chambers v. Ringstaff, supra, and by proper averments described the lands sued for with sufficient precision. We must presume that proper averments and proof, were made, to authorize the verdict and judgment of the court. We cannot say the judgment is void on its face. Not being void the court did not err in striking the petition from the file.

Affirmed.