Peddy v. Street
| Decision Date | 29 April 1889 |
| Citation | 87 Ala. 299,6 So. 3 |
| Parties | PEDDY v. STREET. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Clay county; LEROY F. BOX, Judge.
Action by Merit Street, as administrator of Hezekiah Street, against William J. Peddy, to restore the record of a lost judgment.
L. E. Parsons and Watts & Son, for appellant.
This is an appeal from an order of the circuit court, substituting the record of a destroyed judgment rendered at the fall term, 1869, of the same court. The proceedings, as originally instituted, also sought to substitute the summons and complaint in the cause in which the judgment was rendered. The motion for substitution was amended by striking out so much as referred to the summons and complaint. The movant certainly had the right to abandon the whole or any part of his application. The amendment was merely an abandonment of the part stricken out. We discover no valid objection to the amendment. The appellant appeared and filed pleas, setting up that a copy of the summons and complaint in the original suit was not served on him; that he had no notice of such suit; and that the court in rendering judgment did not have jurisdiction of his person. The judgment proposed to be substituted recites that a copy of the summons and complaint was served on appellant. On a motion to substitute, appellant cannot contest the truth of the recitals of the record, though he may show that the lost or destroyed record did not contain such recitals. On such motion the court does not render or revive the judgment, but merely supplies the record evidence of one already in existence. The whole purpose is to re-establish evidence of its existence in itself conclusive, and to dispense with the necessity of resorting to secondary evidence. May v. Parham, 68 Ala. 253. If the court is fully satisfied by the proof as to the correctness of the proposed substitute, it will order the judgment enrolled as it stood originally, and, when enrolled, it possesses neither more nor less validity that the original judgment. Adkinson v. Keel, 25 Ala. 551; Lilly v. Larkin, 66 Ala. 110; Ward v. State, 78 Ala. 455. On a proceeding to substitute a lost record the court cannot consider a collateral issue. Affirmed.
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Wise v. State
...of thereafter resorting to secondary evidence in its proof, as by purchaser at such tax sale. May v. Parham, 68 Ala. 253; Peddy v. Street, 87 Ala. 299; 6 So. Ward v. State, 78 Ala. 455; Whitney v. Jasper Land Co., 119 Ala. 497, 500, 24 So. 259. The inherent power in a court of general juris......
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Folsom v. Carnley
... ... evidence in its proof, as by purchaser at such tax sale ... May v. Parham, 68 Ala. 253; Peddy v ... Street, 87 Ala. 299, 6 So. 3; Ward v. State, 78 ... Ala. 455; Whitney v. Jasper Land Co., 119 Ala. 497, 500, 24 ... So. 259." ... ...
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Adams v. Adams
...them, have adopted the same to be the law regarding substituted papers as well as the different text written. 34 Cyc. 609-610; Peddy v. Street, 87 Ala. 299; Atkinson v. Keel, 25 Ala. 551; Starns v. Hadnot, La. 366. The above authorities sustain and declare this to be the law on the substitu......
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Whitney v. Jasper Land Co.
... ... efficacy, no more nor less, than the original would have had ... Ward v. State, 78 Ala. 455, 457; Peddy v ... Street, 87 Ala. 299, 6 So. 3 ... The ... petitioner, as has been stated, introduced without objection, ... the affidavits of ... ...