173 So. 378


6 Div. 930A.Supreme Court of Alabama.
March 25, 1937.Page 38

Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.

Bradley, Baldwin, All White and Kingman C. Shelburne, all of Birmingham, for appellant.

A court of record has, independently of statute, the power to restore or supply its own records when they have been lost or destroyed. Baxley v. Jackson, 216 Ala. 411, 113 So. 500; Taylor v. McElrath, 35 Ala. 330; Alabama City, etc., R. Co. v. Ventress, 149 Ala. 658, 42 So. 1017. But see Code 1923, ? 10732.

Crampton Harris and Harold M. Cook, both of Birmingham, for appellees.

Substitution of alleged lost record should be made only on clear and satisfactory evidence of the former existence, contents, and loss of the alleged record. If the evidence leaves the matter doubtful or uncertain, the motion ought to be denied. Dabney v. Mitchell, 66 Ala. 495; Whitney v. Jasper Land Co., 119 Ala. 497, 24 So. 259; Moore v. Braswell, 207 Ala. 333,92 So. 451; Adkinson v. Keel, 25 Ala. 551. Nonjoinder of necessary parties is noticed by the court of its own motion, although not raised by demurrer. Russell v. Bell, 160 Ala. 480,49 So. 314; Alabama Fidelity M. B. Co. v. Dubberly, 198 Ala. 545,73 So. 911; Steele v. Crute, 208 Ala. 2, 93 So. 694; Lacey v. General B. M. Co., 226 Ala. 429, 147 So. 177; Dawkins v. Hutto, 222 Ala. 132, 131 So. 228; O’Rear v. O’Rear, 219 Ala. 419,122 So. 645.

BROWN, Justice.

This appeal is from a decree of the circuit court dismissing the respondents’ motion to substitute additional grounds of demurrer, alleged to have been lost, after the hearing on demurrer.

The grounds of demurrer alleged to have been lost, sought to take the point that the bill was defective for nonjoinder of a necessary party defendant, or a necessary party complainant. Neither of the grounds of demurrer sought to be substituted names the party not joined, and, under the repeated ruling here, are insufficient on the hearing on demurrer to present the question. Nelson et al. v. Wadsworth et al., 171 Ala. 603,55 So. 120; Chambers, Administrator, v. Wright, 52 Ala. 444; Hall v. Holly et al., 220 Ala. 597, 127 So. 164.

The case is now in this court by appeal from the final decree, and if that decree was entered without bringing in the necessary parties, it may be raised here on that appeal. Prout v. Hoge, 57 Ala. 28; Baisden v. City of Greenville, 215 Ala. 512,111 So. 2.

The foregoing would be sufficient for the denial of the motion or its dismissal, as the substitution would be of no benefit to the appellant, and therefore useless. However, there is a sharp dispute between the parties as to whether or not the grounds of demurrer proposed to be substituted were ever interposed to the bill, and we cannot affirm that the court committed error in dismissing the motion, which was tantamount to its denial. Dabney v. Mitchell, 66 Ala. 495.


ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.