DocketNumber: 7 Div. 757.
Citation Numbers: 116 So. 419, 217 Ala. 381, 1928 Ala. LEXIS 504
Judges: Somerville, Anderson, Thomas, Brown
Filed Date: 4/5/1928
Status: Precedential
Modified Date: 10/19/2024
Even on direct motion, a judicial record cannot be altered, amended, or supplied by parol evidence, after the lapse of the term during which the thing was done; or, under our present system, after the lapse of 30 days. McLaughlin v. Beyer,
Here, petitioner could not show by parol that it confessed the defendant's demurrer to its bill, even if it were alleged that the court received the confession and orally declared judgment thereon. We note, however, that it does not appear that the confession was formally made upon a call of the case, nor that the court took any notice of the confession whatever. We are compelled in either case to take the record as it stands, and to disregard this allegation of the petition.
The action of the trial court in dismissing the bill of complaint for want of prosecution was a final judgment from which an appeal could have been taken, and as to which, if erroneous, appeal was an adequate remedy. Ellis v. Brannon,
With respect to the complainant's motion to set aside the judgment of dismissal — such a motion is, in substance and effect, an application for rehearing under Chancery Rule 81; and "rehearings in equity rest in the sound discretion of the chancellor; and when the discretion is exercised, his decision is not revisable, either on appeal or by mandamus." Ex parte Upchurch,
From either point of view, the writ of mandamus does not lie on the case shown by the petition, and the writ must therefore be denied.
Writ denied.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.