Stokes v. Shannon

Chalmers, J., delivered the opinion of the court. Shannon, the defendant in error, had judgment at the September term, -1876, of the Leake County Circuit Court, against Stokes and wife. A motion for a new trial was made, which was overruled, but no entry of the judgment of the court overruling the motion was entered upon the minutes. A writ of error was prosecuted to this court, which was by us dismissed upon the ground that, the record proper showing no disposition of the motion for new trial in the lower court, the case must be treated as still pending there, and the writ of error must be regarded as premature-. Thereafter a motion was made and. sustained in the lower court to enter a judgment nunc pro tunc, showing the action [586] of the court upon the motion for a new trial, which having-been entered, a new writ of error is now prosecuted. It is objected that the former writ of error, which was dismissed, is a bar to the present one. The former writ, being- premature, was a nullity, and constitutes no bar to the present. It is further objected that the judgment nunc pro tunc was void for want of notice to the opposite party. It is difficult to see how the defendant in error can complain of this, since it consisted only in the entry of a judgment in his favor, which the clerk had omitted to enter, and which the plaintiff in error merely desired to have entered, in order that he might appeal from it. But, apart from this, we do not think that the defendant in error was entitled to notice of the motion for the entry of the judgment nunc pro tunc in this case. While it is generally true that such judgments cannot be entered without notice, a different rule prevails where the record itself affords conclusive data for sustaining the motion, without resort to extraneous evidence. In this case the bill of exceptions, which had been signed, sealed, and made a part of the record at the preceding term, showed the action of the court overruling the motion. Freem. on Judg., sec. 64; Fagan v. Carrel, 1 Minor, 170; Allen v. Bradford, 3 Ala. 281; Glass v. Glass, 24 Ala. 468. Upon the merits of the case, the judgment below must be reversed. The recovery was against a married woman, upon a note given by husband and wife for borrowed money, without any proof showing the application of the money to the use and benefit of the wife, or her separate property. Such a judgment cannot be sustained against the wife. Viser v. Scruggs, 49 Miss. 705; Reid v. Coleman, 51 Miss. 835. The husband does not appeal, except as executor of his wife, avIio has died since the judgment. Reversed.