Dunham v. Roberts

GOLDTH WAITE, C. J. This was a motion, made by the appellant, to amend the record of the probate court, as made in an application for the grant of letters of administration, so as to correspond with the facts. The motion was made at a subsequent term of the court, and was endeavored to bo sustained entirely by parol evidence. The general rule unquestionably is, that, to sustain a motion of this character, there must be some matter of record, entry, or memorandum of the judge to amend by.— Thompson v. Miller, 2 Stew. 470; Armstrong v. Robinson, 2 Ala. 164; Benford v. Daniels, 13 Ala. 667; Bondurant v. Thompson, 15 Ala. 202. It is urged, however, on the part of the appellants, that this rule does not apply in cases where the entry complained of was fraudulently made; and it is unquestionably true, that a record may be impeached on that ground (Fermon’s case, 3 Co. 78 b) by any one who is neither a party nor a privy to it. — Cow. & Hill’s Notes to Ph. Ev. 854, 855, In most cases, this is done collaterally; but this mode would not be be effectual, as regards grants of administration. There it would be necessary to resort to a direct proceeding in order to vacate the judgment; and, in all such cases, we think that, by virtue of the powers which courts possess over their records and officers, this may be done on application and notice to the other party, setting forth the fraud specifically, and making the necessary proof. In the present case, however, the motion does not set forth the fraud with any precision, but states simply, as one ground for the amendment, that the record shows a fact that was not proved, and that “the record, as it stands, operates as a fraud” on the rights of the appellant; and, in another part, it alleges that “ the record is void, in law, on account of fraud, in a legal sense,” upon her rights. We do “not think the allegation of fraud is sufficiently specific; and without this, the averment that a fact was recited in the record, which was not proved, would not warrant the introduction of parol evidence to show that such was the case, without violating a well settled principle as to the verity and conclusiveness of records. There is no error in the record, and the judgment is affirmed.