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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
In this case it is assigned as errorthat the judgment was rendered when there was no declaration filed or suit pending.
It appears that the writ issued and was executed on March 27, 1822; that at the return (April, 1822) no declaration being filed, final judgment by default was rendered against Rankin. With the transcript of the record sent up on the return of a certiorari, is a copy of a declaration, which the clerk certifies to have been filed in his office on July 1, 1822; and that inserted it in the transcript by mistake. Marks of erasure are drawn across it. This copy can no more be considered part of the record than any other matter which the clerk might insert by mistaken and afterwards obliterate; nor could his act make a paper, which had been filed in his office after final judgment, part of the record, or lay a foundation for the judgment after it had been rendered. That a defendant cannot be in fault for not pleading until he has been duly informed by the plaintiff’s declaration of the charge to be answered, and that this should so set out the cause of action that the judgment may bar any other action for the same cause, are positions too evident to require argument or authority.
It is the opinion of the court that the judgment and proceedings be reversed down to the writ, and that the cause be remanded.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), p. 125.
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