Baxley v. Jackson

SOMERVILLE, J. Section 10132 of the Code declares: “All courts have the inherent power, if original papers or records, pertaining to matters of civil jurisdiction, or to civil cases which are pending, or which have been determined, are lost or destroyed, to cause a substitution thereof, and the substituted paper or record is of equal validity with the original.” This is merely declaratory of the common law. Taylor v. McElrath, 35 Ala. 330; Ala. City, etc., Ry. Co. v. Ventress, 149 Ala. 658, 42 So. 1017. This power is inherent in probate courts, and the doctrine of laches does not ordinarily bar the relief. Taylor v. McElrath, supra. Parol evidence is admissible to establish tost records (Lilly v. Larkin, 66 Ala. 110), but, of course, matter of record cannot be contradicted by such evidence. We have examined the evidence with due care, and it affords clear and satisfactory proof of the former existence, the contents, and the loss of the records described in the petition, and no reason is apparent why the decree of the probate court ordering that the copies thereof, exhibited by the petition, be substituted therefor, should not be affirmed. Moore v. Braswell, 207 Ala. 333, 92 So. 451. The decree of the probate court is therefore in all respects affirmed. Affirmed. ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.