Ex parte Henderson

• Decision Date: 28 May 1888
• Parties: EX PARTE HENDERSON ET AL.
• Court: Alabama Supreme Court

4 So. 284

84 Ala. 36

EX PARTE HENDERSON ET AL.

Supreme Court of Alabama

May 28, 1888

Application for mandamus.

This was an application, by Lou W. Henderson and others, to the justices of the supreme court, for a writ of mandamus to Chancellor MCSPADDEN, requiring him to entertain and pass upon a petition filed in the Talladega chancery court, praying a correction of the note of testimony in a cause now in the supreme court on appeal from said lower court. There was filed in the lower court a motion by amicus curiæ to strike the petition from the files and a demurrer, which motion and demurrer were filed by the attorneys of the appellees in the cause appealed to this court.

Knox & Bowie, for petitioners.

Parsons & Parsons, against the petition.

STONE C.J.

This is an application for mandamus to Hon. S. K. MCSPADDEN chancellor of the North-East 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 name of his heirs at law, against Charles Pelham et al., lately pending and decided 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 an 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, §§ 129-163; Moore v. Lesueur, 33 Ala. 237; 3 Brick. Dig. 577, 578. 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 cannot be filed by amicus curiæ. The chancellor should so far consider the petition as to pronounce on the proofs offered. Steele v. Commissioners, 83 Ala 304, 3 South. Rep. 761. A rule nisi is awarded to the Hon. S. K. MCSPADDEN,...