WARE vs. BREWER

WARE vs. BREWER. [ACTION ON PROMISSORY NOTE, BY PAYEE AGAINST MAKER.] 1. Amendment of judgment nunc pro tune pending appeal. — When a .judgment is amended nunc pro tunc, after an appeal lias been sued out, but before the transcript has been returnee] to the appellate court, the amended judgment maybe incorporated by the clerk In the transcript without a certiorari; and if the only error assigned is the rendition of judgment without proof of service, and the amended judgment shows that an acknowledgment of service was proved, the judgment will be affirmed. Appeal from the Circuit Court of Shelby. The record does not show who .was the presiding judge. This action was brought by Henry Brewer, against Horace "Ware. Service of the summons and complaint was accepted by the defendant. At the March term, 1858, judgment by default was rendered against the defendant; but the judgment did not show that any proof of the acknowledgment of service was made. From this judgment, on the 80th July, 1858, the defendant sued out the present appeal. At the September term, 1858, on motion of the plaintiff, the court allowed the acceptance of service to be proved, and' amended the former judgment nunc pro tunc, as of the preceding March term, so as to make it show the acceptance of service; and this amended judgment was incorporated by the clerk in the transcript returned to this court. The only error assigned is, the rendition of judgment against the defendant without proof of service. Byrd & Mok&adt, for appellant. James B. MaRtih, contra. [MAJORITY — STONE, J.] STONE, J. It is contended for appellant, that the amended judgment of the circuit court should not be regarded as a part of the records in this court, because those amendments were made after the appeals were taken; and those, amended judgments have not been brought to this court, in return to a writ of certiorari. Before the transcripts for this court were made out, the amendments had been made in the court below. Hence, when the clerk came to. prepare the transcripts, those judgments were a part of the record. He.copied them as parts of the record. They are now before us, taking effect as of a time anterior to the appeal; and there remains no object to be accomplished by a certiorari. "Wilson v. Farmer, at the present term. Regarding the amended judgments as part and parcel of the records, these cases must be affirmed on .the authority of Moore v. Horn & Bouldin, 5 Ala. 234.