Baxley v. Jackson

• Decision Date: 15 June 1927
• Docket Number: 4 Div. 341
• Citation: 113 So. 500,216 Ala. 411
• Parties: BAXLEY et al. v. JACKSON et al.
• Court: Alabama Supreme Court

113 So. 500

216 Ala. 411

BAXLEY et al. v. JACKSON et al.

4 Div. 341

Supreme Court of Alabama

June 15, 1927

Appeal from Probate Court, Houston County; H.K. Martin, Judge.

Petition of G.S. Jackson, B.G. Farmer, A.K. Merrill, and the Houston Hotel Company to substitute lost documents in the matter of the will of John T. Thrasher, deceased.From a decree granting the prayer of the petition, respondents Keener Baxley, as guardian ad litem of Reynolds Thrasher, a minor Ophelia Thrasher, and others appeal.Affirmed.

Keener Baxley, of Dothan, for appellants.

Farmer Merrill & Farmer, of Dothan, for appellees.

SOMERVILLE J.

Section 10132 of the Code declares:

"All courts have the inherent power, if original papers or records, pertaining to matters of civil jurisdiction, or to civil cases which are pending, or which have been determined, are lost or destroyed, to cause a substitution thereof, and the substituted paper or record is of equal validity with the original."

This is merely declaratory of the common law.Taylor v McElrath,35 Ala. 330;Ala. City, etc., Ry. Co. v. Ventress,149 Ala. 658, 42 So. 1017.

This power is inherent in probate courts, and the doctrine of laches does not ordinarily bar the relief.Taylor v. McElrath, supra.

Parol evidence is admissible to establish lost records (Lilly v. Larkin,66 Ala. 110), but, of course, matter of record cannot be contradicted by such evidence.

We have examined the evidence with due care, and it affords clear and satisfactory proof of the former existence, the contents, and the loss of the records described in the petition, and no reason is apparent why the decree of the probate court ordering that the copies...