Floyd, et al. v. Lamar, et al.

Floyd, et al. v. Lamar, et al. Assumpsit. (Decided June 30, 1915. 69 South. 227.) 1. Appeal and Error; Review; Matters Presented. — Where the judgment is not premature, and was based on proper process duly served, the appellate court will not review the action of the trial court in proceeding to judgment where there is no bill of exceptions properly presenting the question. 2. Same. — The amendment of a judgment nunc pro tunc cannot be reviewed on appeal in the absence of a bill of exceptions showing that exceptions were duly reserved to the actioii of the court. 3. Judgment; Entry; Clerical Error. — Clerical errors of mistakes in stating the names of parties, in the minutes of the court are corrected by other parts of the record without a motion to amend. Appeal from Marengo Law and Equity Court. Heard before Hon. E.'J. Gilder. Law Lamar and another brought suit against O. A. Floyd & Co. and the individual members of the firm for breach of contract for the sale of cotton. Judgments for plaintiffs, and defendants appeals. Affirmed. Summons was executed on both of the defendants on June 21, 1911, and on July 8, 1911, the defendants filed their demurrer to- the complaint, and on the filing demanded a trial by jury. In November, 1911, the de-' murrers were overruled, and after plea filed the attorneys for defendant withdrew their appearance. On motion of the plaintiff the court without a jury rendered judgment against the defendants, and executed a writ of inquiry finding defendants due the plaintiffs the sum of $815, for which judgment was rendered. After expiration of that term of the court, and on May 2, 1914, plaintiffs filed a motion in said court to amend and correct said judgment. Notice of this motion to amend was served on both defendants, and the defendant Samuel Floyd filed his demurrers to said motion, which the court overruled, and proceeded to correct the judgment as of the date of its rendition. William Cunninghame, for appellant. Reese & Reese, for appellee. [MAJORITY — BROWN, J.] BROWN, J. This court cannot review the action of a trial court in proceeding to judgment after due service of process, where the judgment is not premature, in the absence of a bill of exceptions properly presenting the question.—Williams, Adm'r, v. Woodward Iron Co., 106 Ala. 254, 17 South. 517; Alosi v. Birmingham Waterworks Co., 1 Ala. App. 630, 55 South. 1029; Wallace v. North Ala. Traction Co., 40 South. 89. Neither will the court revieAV the action of the trial court in granting motion to amend nunc pro tunc in the absence of a bill of exceptions sliOAving that exception Avas reserved thereto.—Lienkauff & Strauss v. Tuscaloosa Sale & Advancing Co., 105 Ala. 328, 16 South. 891; Basenberg v. Lawrence, 160 Ala. 422, 49 South. 771; Turk v. Smith & Co., 2 Port. (Ala.) 155. Furthermore, clerical errors or mistakes in stating the names of the parties in the minutes of the court are corrected by the other parts of the record,' Avithout motion to amend.—Patterson & Hinson, v. Burnett, 6 Ala. 884; Smith v. Redus, 9 Ala. 101, 44 Am. Dec. 429; Kennedy v. Young, 25 Ala. 564; Lamkin v. Dudley, 34 Ala. 117. We find no error in the record, and the judgment is affirmed. Affirmed.