Harris v. Martin
Supreme Court of Alabama
Appeal from the Circuit Court ol Tuskaloosa. Tried before the Hon. Wit. S. Mued. This action was brought bj Joshua L. Martin, against John J. Harris, and was commenced on the 27th February, 1863. Judgment by default, in the usual form, was rendered against the defendant at the September term, 1863. At the September term, 1864, the plaintiff moved “to amend the judgment nunc pro tunc, so as to set forth in the judgment-entry that the service of the summons and complaint on…
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Appeal from the Circuit Court ol Tuskaloosa. Tried before the Hon. Wit. S. Mued. This action was brought bj Joshua L. Martin, against John J. Harris, and was commenced on the 27th February, 1863. Judgment by default, in the usual form, was rendered against the defendant at the September term, 1863. At the September term, 1864, the plaintiff moved “to amend the judgment nunc pro tunc, so as to set forth in the judgment-entry that the service of the summons and complaint on said defendant was proved to the satisfaction of the court on the trial of said cause.” On the hearing of this motion, as…
1Opinion of the CourtA. J. Walker, C. J.
The appellee took judgment by default, and the fact of the acknowledgment of service of process was not stated in the judgment-entry. There were two modes of remedying this defect. One mode was by proving the factum of the acknowledgment of service, at a subsequent term.—Moore v. Horn & Bouldin, 5 Ala. 234; Woodward v. Clegge, 8 Ala. 317. The other mode was by an amendment, nunc pro tunc, of the record.
The appellee did not correctly pursue the former mode, because he introduced no evidence of the fact that service had been acknowledged, except an affidavit of the attorney, who procured the…
2Cases cited11 opinions
- Pettit's Adm'r v. Pettit's DistributeesSupreme Court of Alabama · 1858
- Kidd v. MontagueSupreme Court of Alabama · 1851
- Hudson v. HudsonSupreme Court of Alabama · 1852
- Moore v. HornSupreme Court of Alabama · 1843
- Kitchen v. MoyeSupreme Court of Alabama · 1849
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3Cited by8 opinions
- Independent Publishing Co. v. American Press Ass'nSupreme Court of Alabama · 1893
- Seymour & Sons v. Thomas Harrow Co.Supreme Court of Alabama · 1886
- Robertson v. KingSupreme Court of Alabama · 1898
- Summersett v. Summersett's Adm'rSupreme Court of Alabama · 1867
- Tanner v. HayesSupreme Court of Alabama · 1872
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