Gammon v. Knudson

Day, Oh. J.,

i. records of suppiíédfy e I. The destruction of court records by fire having become so common, the greatest loss and inconvenience would be sustained if courts did not possess the inherent power of replacing records lost by such, or other, casualties. It seems to be very thoroughly settled that such power exists, and the instances of its exercise are numerous. In Keen et al. v. Jordan, 13 Fla., 327 , it is said: “The power of supplying a new record, when the original has been lost or destroyed, is one which pertains to courts of record of general jurisdiction, independent of legislation. It is an inherent power in such courts, and has been acted upon in this state in Rhodes v. Mosely, 6 Fla., 12 , and in Pearce v. Thackeray, decided at January Term, 1870. In Douglass v. Yallop, 2 Burrow, 722, a new judgment roll, for a judgment rendered thirty years previous to a motion to supply the loss, was ordered to be made. In Jackson v. Smith, 1 Cairns, 496, a new nisi prims record was allowed to be made, upon motion and affidavit that the original had been lost or burnt, after six years. In White v. Lovejoy, 3 Johns., 448 , a fi.fa. on which a levy had been made was burnt and the court ordered a newy?. fa. to be substituted. The power has been long and frequently exercised in Alabama. McLendon v. Jones, 8 Ala., 298 ; *457 Doswell v. Stewart, 11 Ala., 629 ; Dozin v. Joyce, 8 Porter, 303 ; Williams v. Powell, 9 Porter, 493 ; Wilkinson v. Brandam, 5 Ala., 608 ; Lyon v. Bolling, 14 Ala., 753 ; Bishop v. Hampton, 19 Ala., 792 ; 3 Ph. on Ev., 1066. Upon the destruction of any part of a record or of the process, pleadings, or orders, in a suit, the loss may be supplied by making up others in their stead, provided the court be reasonably satisfied that the proposed substitute is of the same tenor. Upon that the court where the suit is must exercise its own judgment. Harris et al. v. McKae's Admr., 4 Iredell, 81.”

In addition to the authorities cited in the foregoing quotation, see Adkinson et al. v. Keel, 25 Ala., 551 ; Evans v. Thomas, 2 Strange, 833; King v. Bolton, 1 Strange, 141. "We have no doubt that the power invoked in this case exists at common law, and that it is not dependent upon statutory provision.

2_ judgment. II. It is insisted, however, that under Sec. 2521 of the Code, where a judgment has been lost or destroyed, the only remedy to sue thereon and obtain a new judgment. This secti0u is as follows: “No action shall be brought upon any judgment, against a defendant therein, rendered in any court of record of this State within fifteen years after the rendition thereof, without leave of the court for good cause shown, and on notice to the adverse party; nor on a judgment of a justice of the peace of this State, within eight years after the same is rendered, except in cases where the docket of the justice, or record of such judgment, is, or shall be, lost or destroyed.” It is evident that the only purpose of this section is to prevent a party holding a judgment from suing thereon and accumulating costs, whilst the judgment remains a lien and may be enforced without such suit. The exception in favor of judgments which have been destroyed was made because they are not in a condition to be enforced, without some judicial proceeding thereon and if the holder is willing to accept the disadvantages which would result from instituting suit thereon, he ought to be permitted to do so. "We do not think this section was intended to take away any common law power over a lost judgment which before existed. A party’s *458 rights might be much'impaired, if he is compelled to resort to action and recover a new judgment, thus .losing the lien of the old. The motion to strike from the files the papers and proceedings of plaintiffs should have been overruled.

Reversed.