MURRAY & DURAND, Ex'rs vs. TARDY

MURRAY & DURAND, Ex'rs vs. TARDY. .it When the -transcript of a record contains- a judgment -only, and thV • clerk certifies ‘‘that the same is- all the record of said cause on file,-. the balance- being- lost or mislaid,* the existence of-a writ,- declara-ti'on and plea .cannot be' presumed fioto the recitals in the judgment-' entry that the parties appeared in court by their attorneys, and joined* issue, and that the jury returned' a- verdict for the plaintiff. z: After the rendition of a judgment, the defendant is entitled to notice of a motion-by tire' plaintiff for) leave to- srvbstitu-te.'papers and file-them, .as-a .part eft the. record of the cause,. Ere.gr: to» the Circuit Court. ofMobile,- Tried before &?-: lion, John-. Braggi--. G.' N. Stewaiit, for plaintiffs in error-: - 1; Tbe substituted papers cannot be recognized as parts of the record. The order to substitute is-erroneous, because, 1st, it was made without any proof,, of the loss,, and it is not shown whether the loss was before or after judgment; 2d, it was made without notice to the defendants bblow; 3d, it is general and too broad; it allows plaintiff'to.file wliat he pleases, without any proof or restriction, .whether similar to the papers supposed to be lost or not; ,4th, it is confined to plaintiff, .and does not extend to the defendants, nor to supply the whole record. The substituted papers di> not appear to be filed under the order, nor does it appear they.were authorized to be filed. — Doswell v. Stewart;. 11 Ala. 629; McLendon v. Jones, 8 iff. 298 ; Dozier v. Joyce, .8 Por. 303; • Williams v. Powell,,!) iB.,493.. 2. It does -not appear that the papers existed at the time the judgment below was rendered, therefore the judgment is errone? ous. But if'.tliey did then exist, and were lost-afterwards, .then the court cannot affirm, but must dismiss- the writ of error;, so that anew writ of error may be.-sued out .when ..the. whole record is properly substituted.. Pisnc.Y Walker# contra■: ■ 1. The order of the Circuit Court for tlfe-sub'stítutión of tile papers was proper. — 5 Ala. 608. To sustain a júdgment, every thing compatible with the record will be presumed; hence it follows, .that the order for substitution will be presumed to.- have been mad& upon the proper application and proof. — 3 Stewu-444;.-11 Ala. .590; 1 Por. 479;.l Ala,.80-182 ;:14 S. & E. 220; Dana, 454.. 2. Every reasonable intendment -will be made in favor-of the • regularity of the proceedings of courts of general jurisdiction.— 3 Ala. .109-632 ; 1 ¡L Jt Mar. .609'. Though no plea appears , in the record, the judgment will be supported. The entry show- ■ ihg that the parties appeared in court, joined issue, and that the jury found for the defendant in error, it will be presumed that a ■ plea was filed, &c. — 2 Ala. SSI; lb. 337; 8'ib. 632; 3 S'. & P,. 481-269';: 7 Port. ,33; 18 Ala. .629; ;2 S. & P. 141; .3- P.0r. 387;: 3 Dana,.,454. 3. The rule in regard'to judgments by default, when; no dec,, {«ration appears, docs not apply lore; b'u« every thing n<3-«cessary to uphold the judgment will be .presumed, and it will, ■therefore be intended that there was a writ, declaration, 'See. — 3 Ala. 557; 6 Pei. 352; 15 Ala. 841; 21 Wend, 40; 17 Ala, 278-9, [MAJORITY — COLEMAN, J.] COLEMAN, J. Two transcripts of record are filed in this 'cause. In the first transcript the clerk certifies a judgment only, and that the same-is all “the record of said cause on file, the balance being lost or mislaid.” The counsel for the plaintiff in the court below insists that the judgment ought to be sustained, because the entry shows that the parties appeared in court, joined issue, and the jury found a verdict for the plaintiff, and that hence the existence of «.writ, declaration and plea should be presumed. We do not think we are authorized to go so far, and in that aspect of the case, must declare the judgment erroneous. In the second transcript, it appears that after the writ of error was sued out, to-wit, on the 16th of-January, 1851, an order 'was made in said cause in the court below, in these words: “Ordered by the court, that the plaintiff have leave to substitute papers, to-wit, writ, declaration, &c., in this cause, and that ho file them as part of the record of said -cause.” There -is nothing in the record showing that the defendant had any notice of this proceeding, and the question arises whether it can be sustained without such notice? There seéms to be some contrariety in the opinions heretofore expressed by this court on this subject. In the case of Wilkinson et al. v. Branham, 5 Ala. 608, it was held, that though it is proper to require notice to be given to the defendant, that a motion will be made to substitute a declaration; yet if the court grant the motion without a previous notice, its action will not be considered as void or irregular. The cases of Dozier v. Joyce, 8 Port. 303, and Williams v. Powell, 9 ib. 493, go strongly to show the necessity of notice. In the case of McLendon v. Jones, 8 Ala. 298, the judge, in speaking of the rights of our courts by the common law to substitute lost records, says, “ Of course the substitution can only be made, after a personal notice of the intention to move the court, and this notice should be sufficiently explicit to advise the opposite party of what is intended.” In Doswell v. Stewart, 11 Ala. 629, the Chief Justice says: “ Whether we con-hler the proceeding in reference to the statute or the common. law, a notice is indispensable to its regularity, and this should •be shown either by the return 'of 'an officer Upon a formal notice, ■or by an affirmation of the fact upon the record.” It is certainly a most important legal rule, and altogether essential to the proper administration of justice, that whenever a ’party’s rights iñáy be acted on by k court, he should have notice 'thereof, that he may appeal and cross examine the witnesses and defend his interests. The decision in the case of Wilkinson et al. v. Branham seems to be founded on the supposed legal presumption, that after a judgment the parties are still in court and conversant of all that may be further done in the case. This, however, is well known not to be true in the practice of 'the court's of this State’; and if a party should be allowed after judgment to substitute a record, without actual notice, the adverse party would 'be 'deprived of the important legal right of having an opportunity ’of questioning -its loss and disputing the 'truth of the secondary proof. The judgment is reversed and the'Cause remanded* Dargan, C. J., not sitting.