Gross v. Mims

Bleckley, Justice.

1. A fi. fa. may be amended so as to conform to the judgment from which it issued. Code, §3495. Even the clerk, without action by the court, may amend “any mistake” which he has made in issuing an execution, lb. §3496. Amending efi.fa. does not involve the loss of entries previously made upon it as means of preventing dormancy of the judgment. 56 Ga. 174. Where the original papers in a case are lost, and a proper record of them is wanting or incomplete, by far the better practice is to establish copies and have them duly recorded, so as to make up the full record as it ought to be. It is very unsatisfactory for a court or any officer tp do anything with final process without this preliminary step. Still, we cannot say that if the court from which th.efi.fa. issued, is willing to regard the verdict recorded upon its minutes, and the statement of the parties as there set out, a sufficient basis for amending the fi. fa. in respect to the given names of the defendants, it cannot- do so. We hold that it can. Compare 50 Ga., 378. It is to be remembered that the clerk who issued the writ might amend it as a mere ministerial act, and this being so, the amendment of such writs is on a different footing from most other amendments. There is a very strong moral probability that the verdict conforms to the declaration in the statement of the parties, and that the judgment did not describe the parties differently from the declaration. ITow the execution came to be ■otherwise than it should have been, is not explained, but the affidavit of illegality alleges that it did not follow the judgment, and the affidavit itself points to the verdict as evidence of that fact. The defect in the execution being amendable, and the amendment having been moved for, and, on evidence satisfactory to the court, ordered to be made, the motion to quash was properly, overruled.

2. It will be observed that the affidavit of illegality does not deny that there was a judgment, though it does deny that the records of the court show any. A judgment is not the less a judgment because the clerk has failed to record it. 50 Ga., 378, supra. As the minutes show a verdict, and there has been an execution outstanding and kept alive ever since the year 1861, we think they?, fa., as amended, may proceed without supplying the record or establishing copies of the lost papers. A fair presumption is that there was a valid and regular judgment entered on the verdict, and this presumption ought to hold, as between the parties themselves, and in respect to purposes a y?, fa. may serve without actual production of the judgment, until the contrary appears. It is very rare in our practice when the plaintiff in an execution has to back it up with the production or the proof of a judgment in contests with the defendant. There is a sort of general presumption that every execution issued by a proper officer, which recites a judgment as its basis, has in fact a judgment to stand upon. This presumption is rooted in the still broader one, that all public officers do their duty.

Judgment affirmed.