
    Drake & Wife v. Johnston & Seats.
    
      Action against Husband and Wife for Necessary Family Supplies.
    
    1. Amendment of judgment nunc pro tunc; return to certiorari. — When a judgment is amended nunc pro tunc, pending an appeal, the amendment is properly included in the return to a certiorariI afterwards granted.
    2. Judgment for greater sum. than claimed in complaint. — Where the judgment is by default, with writ of inquiry ; and the verdict of the jury, on the execution of the writ, is for a greater amount than the sum claimed in the complaint, with interest thereon, — this is not a matter which is available on error.
    Appeal from the Circuit Court of Madison.
    Tried before tbe Hon. Wm. J. HABALSON.
    F. P. Ward, for appellants.
    L. P. Walker, contra.
    
   PETERS, C. J.

The appellants move to set aside tbe return of tbe certiorari. Tbis motion is based on two grounds, which are stated in tbe brief of counsel in these words: “ 1. That it embraces tbe amendment to tbe record made in tbe circuit court after tbe appeal was taken.” “ 2. That it does-not include tbe bill of exceptions, by wbicb appellants reserved their objections to tbe allowance of tbe amendment by the court below.”

It appears from tbe record that tbe appeal in tbis case was taken on tbe 12th day of June, 1871, and made returnable to tbe January term of this 'court, in 1872. On tbe 19th day of June, 1872, a certiorari was issued from tbis court, to bring up a perfected record. It was directed to be returned instanter. It was so returned, on tbe 26th day of June, 1872.' The transcript of the record thus brought up to this court shows that the original record in the court below was amended in that court, on the 12th day of May, 1872, which was after the appeal was taken in this case. On this fact we suppose one of the objections above taken is made. Such an objection is insufficient. The amendment of the’ record in the court below simply makes the record speak the truth. The power to do this is inherent in the court where the record is made. Its exercise is necessary, in order to secure the ends of justice. This case is unlike Townsend v. Jeffries, Adm’r, 24 Ala. 329. Here, the amendment was made before the certiorari was issued. In the case above mentioned, it was not made at the time the certiorari was applied for, and the writ was denied. This objection does not fall within the principle of the case quoted and relied on by the appellants.

The second objection is not so clear. It appears that there is a bill of exceptions sent up in the amended record. But whether this is the one referred to in the objection, is not very evident. Whether this is so or not, it would be no ground to set aside the return of the certiorari. If the transcript was still imperfect, and unsatisfactory to the appellants, they could have it perfected in their own behalf, and upon their own motion. Either party is entitled to a certiorari, in a proper case, to perfect the record. But the cause has been submitted on the motioxx above said, and oxx the transcript as it appears in its corrected form. The motion of the appellaxxts to set aside the return of the certiorari is dexxied, with costs.

The case made upon the merits, depends upon the errors assigixed. They are three, and are set dowxx ixx the following words: “1. The coxxrt below erred iix rendering judgment against the appellaxxts, without service of process.” “ 2. The court below ex’red in rendering the judgxnerxt against the appellaxxts, without return, proof, acknowledgxxxent, or service of process.” “ 3. The court below erred in rexxdering the judgment for a larger sum than was claixned in the complaixxt of the appellees.” The completed record shows that the fix’st axxd second. assignment of errors are not sustaixxed. This shows that due notice of process was served upon the appellaxxts, who were defendants in the court below.

This is an aetioxx of assumpsit agaixxst the husband and wife, on an account, or verbal contract, “ for articles of comfort and support of the household.” Rev. Code, §§ 2376, 2377. The sum demanded ixx the coxnplaixxt is $262.44, due by account on July 1, 1870, and interest-thereon. The defendants failed to appear and defend, axxd the judgment was rendered by default, on tbe 26th day of April, 1871, with a writ of inquiry to ascertain the amount of the damages. Upon the execution of this writ, the jury ascertained the damages to be $444.77, besides costs. For the amount of damages thus ascertained, the court rendered a judgment; and the appellants now insist, that this discrepancy between the sum claimed and the verdict of the jury is error, for which the judgment should be reversed.

Tbe judgment by default, in the court below, admits tbe right of the plaintiffs in that court to recover some amount of damages. McGehee v. Childress, 3 Stew. 506. This amount having been fixed by tbe verdict of a jury, if unobjected to, is final in tbis court. Baldwin v. Stibbens, Min. 180; Peters v. Johnson & Connelly, Min. 100. Tbis court has no power to set aside a verdict rendered in tbe court below, if rendered in tbe regular course of the prescribed rules of practice. Tbe correctness of the amount of tbe verdict cannot be inquired into on appeal to this court, if it has not been objected to in the court below. Moor v. Coolidge, 1 Port. 280; Moore v.. Bradford, 3 Ala. 550; McKenzie & Currie v. M'Coll, 3 Ala. 516. This disposes of all the assignments of error, adversely to the appellants.

The judgment of the court below is, therefore, affirmed.  