
    A. G. Story Mercantile Co. v. McClellan.
    
      Appeal From Order Granting Motion to Correct a Judgment.
    
    (Decided Dec. 21, 1906,
    40 So. Rep. 123.)
    1. Judgment; Amendment; Judicial Errors: Jurisdiction of Court. —The act creating the city court of Talladega (Acts 1894-95, p. 1227) provides that after thirty days from the rendition of a judgment by that court, the same shall be deemed as completely beyond the control of the court as if the term of the court at which it was rendered was ended, and after the expiration of that period, that court has no revisory powers over the judgment, cannot correct judicial errors-in it, nor set it aside, unless void on its face; but the court may, under § 3334 of Code of 1896 correct clerical errors, or amend it nunc pro time, after the expiration of thirty days from its rendition.
    2. Same; Application for Correction; Averments. — Before a part/ can obtain an order amending a judgment, not void on its face, after the term at which it was rendered, he must aver and show by matter of record, or by entries made, that on account of clerical errors the judgment entered does not conform to the judgment rendered, or intended to be rendered by the court, but proof dehors the record cannot be resorted to for the purpose of amending the judgment mine pro tunc.
    
    3. Exemptions; Waiver; Pleading Waiver; Sufficiency.- — -Sections 2106-2107 of Code of 1896, do not fix or prescribe any ser. terms in which the averment of a waiver of homestead exemptions ^nust be made nor require a statement of facts in detail for the purpose of distinguishing a valid from an invalid waiver, but an averment that a waiver has been made, properly attested, and. its extent, is sufficient, without alleging that the party making it was married or unmarried, or describing the land constituting the homestead waived.
    4. Exemptions; Complaint; Judgment; Conformity. — In an action on a note, the complaint alleged that by seperate instrument in writing attested by one witness defendant waived his right to claim any homestead or other exemption, and the judgment thereon recited that ■ as against it, and execution issued thereon, there was no exemption of real or personal property; Held-, the complaint was sufficient to call into exercise the jurisdiction of the court to declare the waiver, and its extent, and the recitals of the judgment were sufficient, although they did not follow the averments of the comt plaint; and that the judgment rendered was the solemn express adjudication of the court, not capable of amendment nunc pro tunc, and beyond the power of the court, by lapse of time, to be revised or corrected.
    Appeal from Talladega City Court.
    Heard before I-Ion. G-. K. Miller.
    The facts leading up to- the rendition of the judgment, the waiver and the judgment entered are fully set out in the opinion of the court. The judgment against McClenlan was rendered on the 7th day of -May, 1904, and on the 27th day of June, 1904, he filed a motion in the city court of Talladega, asking that the court correct the judgment rendered on 7th day of May by striking out of such judgment entry the words “waiver of homestead exemptions” or the words “real property,” and to correct the said judgment entry on the minutes o-f the court so as to show that such judgment is not a waiver of defendants homestead exemptions, or right of homestead exemptions, and sets out numerous grounds therefor, mainly that the court was without jurisdiction to render such a judgment under the complaint, and that no valid waiver was shown by the complainant, and no valid waiver is shown to any particular land.
    Demurrers were interposed raising the questions that it was the purpose of the motion to correct an erroneous judicial ruling, and that it does not’appear that any clerical errors were committed and that none is charged. That the motion was predicated upon matters not appearing of record, and many other grounds. The court permitted the movant, over pbjectio-n of the appellant here, to introduce affidavits showing that at the time of the alleged execution of the note and separate instrument in writing, he was a married man, living with his wife on the only land owned by him, and that they were occupying it as a homestead at that time and at the time the judgment was rendered.
    
      J. J. Pierce and W. B. Harrison, for appellant,
    After the expiration of thirty days from the rendition of the judgment the court’s authority over it entirely ceased, under the acts creating the court, — Acts 1894-95, p. 1227. It could not set aside or annul or otherwise modify or change its judgment. — Em parte Payne, 130 Ala, 189; Em parte Paines, 125 Ala. 139; 8ichicars v. Openheimer, 90 Ala. 462.
    This being true, it could only amend its judgment rvhen it undertook to do so, mine, pro trune, to correct ministerial or clerical errors'therein apparent of record. Wihorley r. K,. II. Co., 72 Ala. 20; Montevallo Goal Go. v. Reynolds, 44 Ala. 252; Ivey v. Gilder, 119 Ala. 495; In re Fcicton, 94 Ala. 431
    Without statutory authority the court, after the expiration of the term can only correct ministerial errors.. However erroneous the express judgment of the court cannot be revised or corrected at a subsequent term.— Browder r. Faulkner, 82 Ala. 257; Tippins v. Peters, 103 Ala. 196.
    The power to amend mine pro tune is limited to the correction of clerical errors. — 'Wiggins v. Bteincr, 103 Ala. 655, 657.
    The power is not revisory in its nature and is not intended to correct judicial errors. At a subsequent term you cannot comal that which has been deliberately adjudged. — Em parte Robinson, 72 Ala. 22, 23.
    The exercise of this power should never be the means of rendering a new or different judgment or enlarging or modifying an existing one, hut should be confiled to placing on the, record .in proper form, a. judgment already rendered. The1 power is directed to the entry of the judgment, — placing in proper form,- — -and cannot usurp or supplant the functions of an appeal to a higher tribunal where judicial errors are corrected. However erroneous the express judgment of the court, it must stand until reversed by some other court, — Robertson v. Wing, 120 Ala. 459; Wihnerding v. Oorbin Banking Go., 126 Ala. 273; Browder v. Falkner, supra; Whorley v. R. R. Go., supra; Em parte Robinson, supra.
    
    
      It is an elementary principle, well recognised and universally obtaining, that, whatever is formally embraced, within and declared in a judgment of a court is a judicial determination to- that effect. The fact of waiver of homestead exemptions was declared in the judgment and was a judicial determination of that fact. If erroneous it was a judicial, not a clerical error, properly corrected on appeal, but is not the subject matter of an amendment. mmo pro tunc. The recital of waiver was^a judicial determination to that effect, See Kemp v. Lyon, 76 Ala. 212, 217.
    Lastly, it is well established, known of all men, that a judgment can be amended nunc pro tunc only upon record evidence or evidence quasi of record. — Davis v. State, 136 Ala. 136; Ex parte Davis, 95 Ala. 9,
    . Deficiencies in this proper and only evidence cannot be supplied by parol. The affidavits of Henry McClelland, appellee, setting up that he was a married man (which does not otherwise appear) was a belabored attempt to inject into the record matter dehors the record, to overcome the judgment by evidence aliunde, and was not predicated upon record evidence or evidence quasi of record, while only this kind of evidence was admissible.— Davis v. State, 136 Ala. 136; Genn v. Howell, 35 Ala. 144; Tanner v. Haynes, 47 Ala. 722; Pryor v. Beck, 21 Ala. 393; Ex parte Gilmer, 64 Ala. 234; Hudson v. Hudson, 20 Ala. 364.
    C. C. Whitson, for appellee.
    Under the constitution when the waiver of exemptions “relates to realty it must be signed by both the husband and the wife, and attested by one witness.” — Constitution of 1875, Art. 10, § 7; Constitution of 1901, § 210; Code of 1896.
    Where a waiver of exemptions is claimed in a suit, the facts which constitute such waiver of exemptions must be averred in the complaint. “The rcetial of such waiver in the judgment entry and the endorsement of the waiver on any execution issued are of statutory origin and authority.” — Fears v. Thompson, 82 Ala. 294-296; Reed-Lumber Oo. v. Leiois, 94 Ala. 627.
    
      The constitution which declares that “every homestead not exceeding 80 -acress,” etc., shall be “exempted from sale under execution,” etc., is self-acting and absolutely exempts such homestead without the aid of any legislative provisions.” — Miller v. Marx, 55 Ala. 322.
    In the exercise of the jurisdiction to adjudge and determine as to a waiver of the homestead exemptions, the court exercises a purely statutory authority. — Code of 1896, section 2107.
    Whenever the circuit court or a city court with like powers (as was the city court) “exercises special, limited jurisdiction, the existence of jurisdictional facts is not inferred from the exercise of jurisdiction but they must affirmatively appear from the record.” — Good-water Warehouse Go. v. Street, 137 Ala. 625; Pettus v. McGlanngan, 52 Ala. 55; Willmercling v. Gorbin Banicing Go., 126 Ala. 268-278; Wells v. Mortgage Co., 123 Ala. 421; State v. M. & G. Railroad Go., 108 Ala. 29; Pullman Palace Oar Go. v. Harrison, 122 Ala. 149.
    It is equally well settled that the existence of such jurisdictional facts is not inferred from their recital merely in the judgment entry. — 137 Ala. page 625, supra; Joiner v. Winston, 68 Ala. 129.
    It follows, that in so far as the averments of the complaint as amended in respect to the alleged waiver of homestead exemptions, is concerned, the complaint fails to contain a substantial cause of action. Where there is no substantial cause of action contained in the complaint there is nothing upon Avhich a judgment can be founded. — Linam v. J ones, 134 Ala. page 579-580; Goodwin r. Forman, 114 Ala. 489, 492; Jordan v. N. G. & St. L. R. R., 131 Ala. pp. 219-221; L. & N. R. R. Go. v. Williams, 113 Ala. 403, 405.
    When a judgment has been rendered which is void on its face for Avant of jurisdiction, the court from “a due regard for its own dignity, the protection of its officers, the prevention of the abuse of its process and of injustice to its suitors, and the preservation of the sanctity of the judgments it may rightfully render” will vacate and set aside judgments on a proper application coming from a party having rights and interest immediately involved at any time subsequent to its rendition. — Buchanan v. Thomason, 70 Ala. .pp. 401-402; Pettus v. Mc-Clannahan, 52 Ala. p. 55; 3 Mayfield’s Digest, uage 1135, par. 6.
    This was a court of limited jurisdiction, and the petition must state all of the jurisdictional facts otherwise the decree is void, although the decree recites all the jurisdictional facts.- — Cox v. Johnson, 80 Ala. 22-24; Cohen v. Wallner, 72 Ala. 233; Hew Eng. Mort. Co. v. Powell, 94 Ala. 427.
    And furthermore, the omission of a single juriklic- ' tional fact in the petition renders the entire decree void. —72 Ala. page 233, supra.
    It is well settled that although there may be recitals of a fact in the judgment of a court of limited jurisdiction, and such fact is jurisdictional, such recital may be shown to be false on collateral attack. — Cox v. Johnson, 84 Ala. supra; Beasley v. Howell, Admr., 117 Ala. 506.
    If the averment, as to a waiver of exemptions is not sufficient to support a. judgment declaring such waiver “the defendant may protect himself by motion to strike out” the recital of the fact incorporated in the judgment. —Oolden v. Coiner, 89 Ala. 601.
    Affidavit was the proper method of making such proof on the motion to vacate such judgment.- — 3 May-field’s Dig. page 1176, paragraph 870.
    Furthermore, the defendant offered to prove by himself as a witness the facts stated in the affidavits, and plaintiff’s objection that oral testimony was not competent as such testimony was sustained. It follows that it cannot put the court in error on objections to the affidavit, when its own objection prevented the curing of any error in admitting the affidavits, if error it was. Plaintiff cannot blow both hot and cold. — Hooper v. Birch,field, 115 Ala. 227.
   DENSON, J.

The A. G. Story Mercantile Company sued Henry McClellan in the city court of Talladega on a promissory note, and obtained judgment by default against him on the 7th day of May, 1904. The summons and complaint were issued on the 1st day of April, 1904, and were executed on the 2d day of April, 1904, by the sheriff leaving a copy with the defendant. The original complaint contained no averment of a waiver of exemptions either as to personal property or the homestead. On the day the judgment was rendered, and before it was rendered, by leave of the court the complaint was amended. The amendment material to- our consideration here is in this language: “And plaintiff avers that by a separate instrument in writing, subscribed by the defendant and attested by one witness, the defendant waived all right to claim any homestead or other exemptions under the laws of Alabama as against the indebtedness evidenced by said note.” There is no averment in the complaint as to the status of the defendant, whether married or single. In the judgment by default rendered is found this recital: “As against this judgment and the executions to be issued thereon there are no exemptions of real or personal property^.” On June 27, 1904, more than 30 days after the judgment was rendered, the defendant filed a motion to amend and correct nunc pro tunc the judgment rendered, by striking out that part cf it adjudging that the defendant was not entitled to any exemption as to real property. The court overruled a demurrer to the motion, and on the evidence adduced granted the motion and corrected the judgment in accordance with the prayer of the motion. Prom the judgment rendered by the court on the motion, the plaintiff appealed.

By the act of the General Assembly establishing the city court of Talladega, judgments rendered by that court, after the expiration of 30 days from their rendition, are to be taken and deemed as completely beyond the control of the court, as if the term of said court at which said judgments were rendered had ended at the end of said 30 clays. — Acts 1894-95, p. 1227. So, the motion and proceedings had thereon must be considered as if the motion was made after the term at which the judgment was rendered had expired. It must follow, then, under the rule established by this court, that the court had no revisory power over the judgment rendered; could not correct any judicial errors that may have been committed; could not set aside the judgment, unless it was void on its face. It could, however, entertain a motion to amend and correct ministerial errors under the authority-conferred by section 3334 of the Code of 1896. — Ex parte Payne, 130 Ala. 189, 29 South. 622 ; Ex parte James, 125 Ala. 119, 28 South. 69 ; Schwarz v. Oppenheimer, 90 Ala. 462, 8 South. 36 ; Johnson v. Glasscock, 2 Ala. 522 ; Gibson v. Wilson, 18 Ala. 63 ; Harris v. Billingsley, 18 Ala. 438 ; Whorley v. M. & C. Ry. Co., 72 Ala. 20 ; Ivey v. Gilder, 119 Ala. 495, 24 South. 715 ; Tippins v. Peters. 103 Ala. 196, 15 South. 564 ; Wiggins v. Steiner, 103 Ala. 655, 16 South. 8 ; Ex parte Robinson, 72 Ala. 389 ; Pettus v. McClannahan, 52 Ala. 55. Under the authorities, supra, the failure of the court to act or its incorrect action can never authorize a nunc pro tunc entry. “If no judgment be rendered, or if an imperfect or improper one be rendered, the court has no power to remedy any of these errors or omissions as clerical misprisionsIn the language of Brickele, C. J., in the case of Whorley v. M & C. Ry. Co., supra: “The correction is of clerical errors — it is not of the express j udgment that the court-may have pronounced. It i<s in respect to an error or defect in the entry of the judgment the court rendered; the omission of a statement of a fact the parties are entitled to have spread on the record, or, it may be, expressing the statement of a fact incorrectly or impertinently introduced. The clerical duty is the entry of the judgment the court renders, however erroneous it may be, and, if the duty is performed, the correction of the error must, be made in an appellate court.” — Freeman on Judgments (3rd Ed.) § 68, and authorities cited in note 1. To entitle a party to an order amending a judgment, he must establish that the entry as made does not conform to what the court intended it should be when it was ordered; and this on account of clerical errors, or omissions.

Section 2107 of the Code provides that: “In any suit:, at law or in equity, in which a waiver of the right of homestead or other exemption is sought to- be enforced, the fact of Avaiver and its extent must be averred in the complaint, petition or bill, and by appropriate pleading may be controverted; and if such averment is sustained, the fact of waiver and its extent must be declared in the judgment or decree,” etc. There can be no doubt that this declaration of the waiver in the judgment involves án adjudication by the court of the fact of waiver and its extent. Until the court so adjudges, the clerk has no authority to embody in the judgment, anything with reference to such waiver and its extent. When the court does so adjudge, the clerical duty is the entry of the judgment the court has rendered. In this case we have the. adjudication by the court of the fact of waiver and its extent. Brown v. Leitch, 60 Ala. 313, 31 Am. Rep. 42. Indeed, the motion does not proceed upon the theory that the court did not adjudge the waiver and its extent; but, according to our understanding of the facts alleged, the theory and contention of the defendant (appellee) is that the court ivas without jurisdiction to render the judgment declaring the waiver and its extent with respect of the homestead exemptions. Therefore that the judgment is void on its face. This contention is rested upon the proposition that, in the exercise of jurisdiction to declare the fact of waiver and its extent, the city court, quoad hoc, is a court of limited and -statutory jurisdiction. Therefore that jurisdictional facts cannot be inferred from the exercise of jurisdiction or from their recital in the judgment entry, but such facts must be averred in the complaint. The supposed defects in' the complaint as pointed out in the motion, and which are insisted upon as causing the complaint to fall short of sufficiency to give the court jurisdiction to declare the waiver of exemptions as to the homestead, are lack of an averment that the defendant was an unmarried man, and lack of averment that the waiver particularized the lands to which it applied. Section 2106 of the Code of 1896 provides the manner in which waiver of exemptions as to homestead may be made. By its terms the waiver must be by a separate instrument in writing, subscribed by the party making the same, and attested by one witness; and, if the party is a married man, such waiver shall not be valid without the voluntary signature of the wife, etc. It- is true the fact of waiver and its extent must, be averred in tlie complaint. — Code 1896, § 2107 ; Goetter v. Pickett, 61 Ala. 387 ; Taylor v. Cockrell, 80 Ala. 236. But the statute does not fix any set terms in which the averments are to be made, nor does it require that facts that would distinguish a valid from an invalid waiver shall be set out in the complaint in detail, but the mere allegation of the fact that the waiver has been made and its extent, seems to be the full requirement in this respect. This construction is reinforced by the further provision in the statute that the fact of waiver may be controverted by appropriate pleading. — Code 1896, § 2107. Granting the defendant was an unmarried man at the time the waiver was made, could it be contended with any show of reason in the light of the averments of the complaint, that, the judgment was void on its face because there is not an averment in the complaint as to the status of the defendant — whether married or unmarried? We think not, for the simple reason that the complaint, as we have seen, shows with preciseness a waiver of homestead exemptions made in conformity with the statute when the waiver i.s made by an unmarried man. That the defendant is, and was at the time the waiver was made, a married man is a fact dehors the record. The fact that defendant was a married man could have been shown in this-case, as it was shown, only by evidence extrinsic to the record. This sort of evidence cannot be resorted to on a, motion to enter judgment mme pro- tunc.- — Code 1896, § 3331; Davis' Case. 136 Ala. 136, 33 South. 813. and authorities there- cited.

Without determining the question as to whether the city court is a court of general or limited jurisdiction with respect of declaring the fact of waiver of exemptions, we are at the conclusion that the complaint was sufficiently specific in its averments to call into exercise the jurisdiction of the court to declare the fact of waiver and its extent, and therefore that the judgment is not void on its face. There is no merit in the proposition that, the waiver fails to particularize the lands; nor in the proposition that the- judgment entry does not follow the averments of the complaint. If there is merit in the fifth ground of the motion it is apparent that the defendant’s remedy is not by motion to amend ini-no pro tune the judgment entry. It is clear to our minds that the judgment declaring the fact of Avaiver is not the result of a clerical error or omission, hut that it conforms to Avhat the court intended it should bo at tlio time it was rendered. In otlier Avords, that it is the solemn express adjudication of the court. And it aatis therefore beyond the power of the court to revise or correct any judicial errors that may. have been committed in its rendition.

The final conclusion is that the court erred in overruling the demurrer to the motion and in allowing the affidavits offered by the defendant (movant) as evidence. The judgment of the city court is revensed, and a judgment AA’ill he here rendered sustaining the demurrer to the motion and overruling the motion. The appellee must pay the cost of the appeal.

ReArorsed and rendered.

_ Tyson, Simpson, and Anderson, JJ., concur.  