On Rehearing. Appellant and relator cite section 6682 of the Code as controlling on this appeal, and that it means to enact that the circuit court cannot allow an officer to amend his return of process, except as shown upon the face of the record of the existence of the facts. The necessity of record evidence as a condition to an amendment of a judgment or any part of the record is not dependent upon statute. Metcalf v. Metcalf,19 Ala. 319, 54 Am. Dec. 188; Kidd v. Montague, 19 Ala. 619; Saltmarsh v. Bird, 19 Ala. 665; Hudson v. Hudson, 20 Ala. 364, 56 Am. Dec. 200. The above cases are selected among those occurring prior to the first adoption of the Code section mentioned. The rule is stated generally as applicable to most jurisdictions, in 34 C. J. 247, 248.
In our case of Harris v. Martin, 39 Ala. 556, it is said that, when a judgment by default is based upon an acknowledgment of service, and not a sheriff's return, the judgment must recite that proof of such acknowledgment of service was made. If the judgment does not so recite, it may be amended nunc pro tunc, so as to contain the recital, provided there is record evidence that such proof was made, or the factum of such acknowledgment may be proven at a subsequent term, although no proof was made of such acknowledgment when the judgment was rendered. This situation was referred to in Independent P. Co. v. Am. Press Ass'n, supra, pointing out that this court has permitted such proof of service after the appeal was taken. It was not proof that at the former term there was such evidence, but proof that in fact, and independent of what then occurred, service was had on an agent of the corporation, citing Harris v. Martin, supra. So that the distinction which we tried to make clear in the former opinion is fully sustained that if the effort is made to amend the judgment, so that it will show that proof was made when the judgment was entered, record evidence is necessary, but not if the effect is as an original proposition to make proof of such service, or acknowledgment of service, as the case may be. It seems never to have been thought that section 6682 was controlling on the subject. This is also supported by the case of Ware v. Brewer,34 Ala. 114.
It is our opinion that it was not the purpose of this section to prevent the court, on parol evidence of a proper nature, from allowing an officer of his own accord to make an amendment to his return. If the motion were that the court shall itself amend the return, a different question would be presented.
Application for rehearing overruled. *Page 127