Browder v. Faulkner

• Decision Date: 12 July 1887
• Court: Alabama Supreme Court
• Parties: BROWDER, ADM'R, v. FAULKNER.

3 So. 30

82 Ala. 257

BROWDER, ADM'R, v. FAULKNER.

Supreme Court of Alabama

July 12, 1887

Appeal from circuit court, Cherokee county; JAMES AIKEN, Judge.

This action was brought by Robert Faulkner, an infant, suing by his next friend, against W. G. Browder, as the administrator of the estate of David Browder, deceased, and was commenced on the twenty-first of August, 1880. Said David Browder deceased, was a surety on the official bond of James Bradford and H. J. Faulkner, as executors of the last will and testament of F. B. Faulkner, deceased, who was the plaintiff's father; which bond was dated the seventeenth of September, 1866, and conditioned as by law required. The action was brought to recover the amount due to the plaintiff as his distributive share of his father's estate, as ascertained by a decree of the probate court rendered on the twenty-seventh of April, 1876, on final settlement of the accounts and vouchers of said James Bradford as executor. The decree rendered on that day, as offered in evidence on the trial, or the material part of it, was in these words "To L. L. Cochran, guardian ad litem for the minor heirs of said estate, to-wit, Mary J., Henry, Frank Ida, John, and Robert Faulkner, the court decrees the sum of $686.13, in full of their distributive share, and against said James Bradford; for which let execution issue." The defendant objected to the admission of this decree as evidence, "because it is not a final decree as to said minor heirs, there being no decree of distribution;" and he excepted to the overruling of his objection. The plaintiff then offered in evidence a decree rendered by said probate court on the fourteenth of September, 1885, amending the former decree nunc pro tunc, so as to render a separate decree in favor of each of the minor distributees for $114.35, as his distributive share of the estate; and this was the amount claimed in the present action. To the admission of this amended decree as evidence the defendant objected, because it was rendered without notice to said James Bradford; and he expected to the overruling of his objection. These rulings on the evidence, with other matters, are now assigned as error.

J. L. Burnett, for appellant.

Carden, Matthews & Daniel, contra.

CLOPTON J.

The powers of courts to amend judgments after the close of the term extends to all omissions to enter the judgments pronounced by the court, and to clerical errors in the form of the entry; whether by introducing a fact which ought to appear on the record, or by striking out a statement of a fact improperly introduced, and when the record affords sufficient evidence. But when the defect consists in the failure of the court to render the proper judgment, or arises from a want of judicial action, the record cannot be corrected after the term has closed, the cause being no longer sub judice. The purpose of amendment is to make the judgment conform to what the court intended it should be, to set right the record and make it speak the truth, so that omissions or clerical errors shall not prejudice parties litigant. The power to amend nunc pro tunc is not revisory in its nature, and is not intended to correct judicial errors. Such amendments "ought never to be the means of modifying or enlarging the judgment, or the judgment record, so that it shall express something which the court did not pronounce, even although the proposed amendment embraces matter which ought clearly to have been pronounced." However erroneous, the express judgment of the court cannot be corrected at a subsequent term. Whorley v. Railroad Co., 72 Ala. 20; Emerson v. Head, 81 Ala. 443, 1 South. Rep. 197; Freem. Judgm. § 70. Section 702 of the Code, which...