Ex parte Lineville Nat. Bank

• Decision Date: 05 April 1928
• Docket Number: 7 Div. 757
• Citation: 217 Ala. 381,116 So. 419
• Parties: Ex parte LINEVILLE NAT. BANK.
• Court: Alabama Supreme Court

116 So. 419

217 Ala. 381

Ex parte LINEVILLE NAT. BANK.

7 Div. 757

Supreme Court of Alabama

April 5, 1928

Original petition of the Lineville National Bank for mandamus to Hon E.S. Lyman, as Judge of the Circuit Court of Clay County. Writ denied.

J.J Cockrell, of Ashland, for appellant.

A.L Crumpton, of Ashland, for appellee.

SOMERVILLE J.

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, 181 Ala. 427, 61 So. 62; Browder v. Faulkner, 82 Ala. 257, 3 So. 30; Wilmerding v. Corbin Banking Co., 126 Ala. 268, 28 So. 640; 34 Corpus Juris, 247, § 474. And, of course, in a collateral proceeding an unrecorded action of the court cannot be shown and made effective by parol evidence. Campbell v. Beyers, 189 Ala. 307, 313, 66 So. 651; Stewart's Adm'r v. Stewart's Heirs, 31 Ala. 207, 214.

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, 161 Ala. 573, 579, 49 So. 1034. Hence mandamus to set aside the judgment does not lie. Ex parte Southern Telegram Co., 73 Ala. 564; State v. Still, 178 Ala. 442, 59 So. 628.

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, 215 Ala. 610, 112 So. 202; Ex parte Gresham, 82 Ala. 359, 2 So. 486.

From either point of view, the writ of mandamus does not lie on the case shown by the petition, and the writ must therefore...