Ware v. Kent

• Decision Date: 15 June 1899
• Citation: 123 Ala. 427,26 So. 208
• Parties: WARE ET AL. v. KENT.
• Court: Alabama Supreme Court

26 So. 208

123 Ala. 427

WARE ET AL. v. KENT.

Supreme Court of Alabama

June 15, 1899

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Ejectment by Wesley Ware and others against Isaac P. Kent. Judgment for defendant, and plaintiffs appeal. Affirmed.

Denson & Tanner, for appellants.

J. M Gillespy, for appellee.

McCLELLAN C.J.

Joshua Ware had title to the land in suit by patents from the United States. The plaintiffs are his heirs at law. The defendant claims title through an execution issued on a judgment against said Joshua, the levy thereof upon this land, its sale thereunder, and the purchase at such sale by defendant's grantor, to whom the sheriff executed a deed. The judgment upon which this execution issued was rendered by a competent court, but not entered by the clerk of the court or imperfectly entered. Subsequent to the sale under execution, the sale and conveyance by the purchaser thereat to this defendant, and to the institution of this suit, the plaintiffs in that cause, one of whom was such purchaser and grantor, moved the court to enter said judgment nunc pro tunc, or, rather, to amend its imperfect entry nunc pro tunc. This motion, in due course, was granted, and a judgment in all respects regular and formal was entered of record as of the original rendition of judgment in the cause. On the trial of this cause, a transcript from the record of the court in which said judgment had been rendered, showing the pleadings in the cause, the bench notes of the judge rendering judgment by default and assessing the damages and directing judgment for the amount thereof, the imperfect entry made by the clerk of the judgment rendered as shown by the bench notes, the motion to amend the entry nunc pro tunc, the order of the court granting the motion and entering or directing the entry of formal judgment, and the formal judgment so entered, was offered in evidence, and admitted against the objection of the plaintiffs. And this action of the court is really the only matter presented for review by this appeal, since all the other rulings excepted to, including the finding and conclusion of the judge sitting without a jury, and the judgment rendered thereon, were proper or not, as the admission in evidence of this transcript was proper or not.

That the transcript, or, at least, so much of it as showed the entry of a formal and regular judgment having effect as of the original rendition of judgment, was properly received in evidence, there can, we think, be no serious doubt. The objections to it were wholly untenable, upon two distinct grounds: In the first place, the correctness of the court's action in...