Opinion
4 Div. 341.
June 15, 1927.
Appeal from Probate Court, Houston County; H. K. Martin, Judge.
Keener Baxley, of Dothan, for appellants.
The court has lost all power to substitute lost papers. Section 10134 of the Code of 1923 does not apply to this case.
Farmer, Merrill Farmer, of Dothan, for appellees.
Independent of statute, under the common law, a court has the inherent power to restore and substitute its lost records. State ex rel. Cooper v. Ellis, 211 Ala. 489, 100 So. 868; Wise v. State, 208 Ala. 58, 93 So. 886, Bradford v. State, 54 Ala. 230; Taylor v. McElrath, 35 Ala. 330. Section 10143 of the Code applies, and every requirement thereof has been complied with. Moore v. Braswell, 207 Ala. 333, 92 So. 451; Arnett v. Birmingham Coal Iron Co., 173 Ala. 532, 55 So. 831.
Section 10132 of the Code declares:
"All courts have the inherent power, if original papers or records, pertaining to matters of civil jurisdiction, or to civil cases which are pending, or which have been determined, are lost or destroyed, to cause a substitution thereof, and the substituted paper or record is of equal validity with the original."
This is merely declaratory of the common law. Taylor v. McElrath, 35 Ala. 330; Ala. City, etc., Ry. Co. v. Ventress, 149 Ala. 658, 42 So. 1017.
This power is inherent in probate courts, and the doctrine of laches does not ordinarily bar the relief. Taylor v. McElrath, supra.
Parol evidence is admissible to establish lost records (Lilly v. Larkin, 66 Ala. 110), but, of course, matter of record cannot be contradicted by such evidence.
We have examined the evidence with due care, and it affords clear and satisfactory proof of the former existence, the contents, and the loss of the records described in the petition, and no reason is apparent why the decree of the probate court ordering that the copies thereof, exhibited by the petition, be substituted therefor, should not be affirmed. Moore v. Braswell, 207 Ala. 333, 92 So. 451. The decree of the probate court is therefore in all respects affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.