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64 Ala. 234

Ex parte Gilmer

Supreme Court of Alabama

Decided December 15, 1879

Supreme Court of Alabama · decided 1879-12-15

Application by petition, under oath, by Captain Gilmer, for a mandamus, or other appropriate writ, to the Circuit Court of Montgomery, Hon. J. Q. Smith presiding, to compel that court to vacate and set aside a judgment rendered nunc pro tunc, as hereinafter set out, in a cause in which Margaret Robinson was plaintiff, and said Gilmer was defendant.

Relies on Withers v. State ex rel. Posey · Eufaula Water Co. v. Addyston Pipe & Steel Co. · Ex parte Hendree

Good law ✅— No negative treatment on recordhow we know

Decided 1879-12-15

How this case has been cited

Cited by 12 later decisions — most recently March 2017

12 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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STONE, J.

¶1As far back as 1827 it was decided in this court that, in entering judgments nunc pro tunc, only record evidence, or evidence quasi of record, could be looked to. Oral proof can not be considered; for, to allow it, would be to contradict the record by parol testimony. Draughan v. Tombeckbee Bank, 1 Stew. 66; Thompson v. Miller, 2 Stew. 470; Reid v. Brashear, 7 Por. 448; Armstrong v. Robinson, 2 Ala. 164; Benford v. Daniels, 13 Ala. 667; Lewis v. Lewis, 25 Ala. 315; Farmer v. Wilson, 34 Ala. 76; Harris v. Martin, 89 Ala. 556; Summersett v. Summersett, 40 Ala. 596. It is equally well settled, in the above, and many other cases, that from a judgment rendered nunc pro tunc, which is final, or definitive of the cause in the court below, leaving nothing further to be done, save to enforce the judgment, an appeal lies to this court. The judgment rendered nunc pro tunc, in this case, was a final disposition of the cause, leaving nothing to be done afterwards, except to enforce the judgment by execution. Prom that judgment, an appeal would have lain to this court. — Ex parte Hendree, 49 Ala. 360.

¶2The writ of mandamus will be granted, only where there is a specific legal right, and no other legal remedy adequate to its enforcement. — 2 Brick. Dig. 240, § 4; Murphy v. State, ex rel. 59 Ala. 639; Withers v. State, 36 Ala. 252; Heflin v. Rock Mills Man. Co., 58 Ala. 613. The relator in this case has an adequate remedy for the error he complains of, by appeal, and the writ of mandamus must be refused.

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