"In this state it is settled that any attempt to impeach and annul a judgment other than by a direct appeal, or by a direct proceeding in the court that rendered the judgment, before the expiration of the term at which it was rendered, is a collateral attack. Friedman v. Shamblin, 117 Ala. 454, 466,23 So. 821." Johnson v. Johnson, 182 Ala. 376, 385, 62 So. 706,709; Berry v. Manning, 209 Ala. 587, 96 So. 762; State v. Realty Loan Co., 209 Ala. 559, 562, 96 So. 613; Stovall v. Jasper, 218 Ala. 282, 118 So. 467. "This, of course, does not deny the well-settled jurisdiction of equity to review judgments founded on fraud," etc. Johnson v. Johnson, supra; Berry v. Manning, supra.
In the case of Miller v. Thompson, 209 Ala. 469, 96 So. 481,482, the Supreme Court on this subject uses the following language: "Whether the attack upon the record and decree of the probate court is direct or collateral is a question discussed in the briefs. We incline to the view that the attack is collateral, for 'any proceeding provided by law for the purpose of avoiding or correcting a judgment is a direct attack, which will be successful upon showing error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power.' Van Fleet on Collateral Attack, § 3, where a suit to quiet title is enumerated as one of a number of familiar instances of collateral attack." See, also, 34 Corpus Juris, 520 et seq.
In the case of Ex parte City Bank Trust Co., 200 Ala. 440,76 So. 372, the attack was by motion in the same court to expunge the record.
Our conclusion is that the relief sought by the cross-bill in this case is a collateral attack upon the records of the city council.
But it is claimed that the so-called minutes are not records and never became such in law, but mere extraneous and spurious matter, and on collateral attack this may be shown. Our inquiry is now therefore directed to that claim.
Section 1915, Code, requires the city clerk to attend meetings of the council and keep a record of its proceedings. They do not have to be written at the session of the council or during any other time fixed by *Page 162 law. Any errors in such records may be corrected at any subsequent session of the council. It does not lose control of its minutes by the lapse of any definite time, as with the courts. Anniston v. Davis, 98 Ala. 629, 13 So. 331, 333, 39 Am. St. Rep. 94; 3 A.L.R. 1308, note. And such record is the only evidence of the acts of the council. Ala. City, Gadsden A. Rwy. Co. v. Gadsden, 185 Ala. 263, 267, 64 So. 91, Ann. Cas. 1916C, 573; Perryman v. Greenville, 51 Ala. 507; Greenville v. Greenville Water Works, 125 Ala. 625, 643, 27 So. 764; Pilcher v. Dothan, 207 Ala. 421, 93 So. 16. And, as said in Anniston v. Davis, supra, "So long as the minutes of the meeting * * * remain as the minutes of the council, they cannot be impeached or varied in a collateral proceeding by parol testimony." And in 2 McQuillin on Municipal Corporations, pp. 499, 500, § 561 (621), it is said: "Records imperatively required by law, made by the proper officers, are conclusive of the facts therein stated, not only upon the corporation, but upon all the world as long as they stand as records. Their accuracy can be contradicted or impeached only in proceedings instituted directly for the purpose and to the end that the record may be corrected. So long as they are in existence and can be produced they are the only competent evidence of the acts of the corporation."
If the record does not speak the truth, it should be made to do so, for the council has the right at a subsequent meeting to amend it, and, if the council should fail to do so on proper petition, mandamus will lie to require it. 2 McQuillin on Municipal Corporations (2d Ed.) 658, 628.
In the opinion of Justice Brown there is a quotation from Benwood v. Railway Co., 53 W. Va. 465, 44 S.E. 271, 276, whose language indicates that it may be shown on collateral attack that a quorum was not present, and therefore that what purports to be a quorum was not such in law. In the opinion a distinction is drawn in legal effect between a recital on the records of the conclusion that "a quorum was present," and a recital of the names of those alleged to be present constituting thereby a quorum. It is said that a conclusion so stated may be impeached collaterally, but refers to the case of Shank v. Ravenswood, 43 W. Va. 242, 27 S.E. 223, as holding that: "In the case of an inferior court, board, or body, required to keep a record, the facts essential to give it jurisdiction must appear in its proceedings, else its action will be void and open to attack collaterally; but, if its record states such facts, its jurisdiction will not be open to attack, nor can such facts be disproven in a collateral proceeding." But in the case of Benwood v. Railway Co., supra, it is said: "That a quorum is present must appear upon its record as a fact, and not as a mere conclusion or opinion, and the only way to make it appear as a fact is to set forth on the minutes the names of the persons in attendance. When that is done at the beginning of the session, the status so established is presumed to continue, unless the contrary appears in some way upon the record."
For our purpose it is not necessary to approve the distinction so drawn, and we do not express an opinion respecting it.
Our case is within the rule as quoted from Shank v. Ravenswood, supra, and therefore the conclusion of the court in Benwood v. Railway Co., supra, if correct, would not apply to our case. For the cross-bill avers that some of the members of the council assembled, and that the minutes of the meeting as written on the records showed the names of members of the council as present sufficient to constitute a quorum, but alleged that some of them were in fact not there, but in effect that they approved the proceedings over the telephone, and therefore, the record was false in reciting their presence and in showing the presence of a quorum.
The act of the clerk in writing the minutes was one of his official duties, required of him by law. Appearing in fact upon the proper records, by an officer whose duty it was to make and keep the records, it became in law a record, and it has presumptively remained as such. All this was within his colorable authority, and we think partook of the nature of a record to the extent that it cannot be impeached collaterally. At the time of doing this act, the records were by law due to be in his custody, and had not legally passed out of his control. Certainly, when they pass beyond his custody and control, he has no color of authority. So that, after the journals of the Senate and House are completed and authenticated and filed with the secretary of state, one of the clerks may not add to or take from them, and any such attempt is of no effect on collateral attack. But their recitals as filed in the office of the secretary of state are conclusive on any such attack. Montgomery Beer Bottling Works v. Gaston,126 Ala. 425, 28 So. 497, 51 L.R.A. 396, 85 Am. St. Rep. 42; State v. Wilson, 123 Ala. 259, 26 So. 482, 45 L.R.A. 772; Ex parte Kelly, 153 Ala. 668, 45 So. 290; Frederick v. Brodie,148 Ala. 381, 41 So. 180.
The case of Wheeler v. River Falls Power Co., 215 Ala. 665,111 So. 907, in no respect conflicts with our conclusion. The opinion expressly states that the record of the proceedings of the state board of health showed in its recitals the want of a quorum to transact business.
Our conclusion now is that the decree of the court sustaining the demurrer to the cross-bill was correct. It is therefore ordered that the rehearing be granted, the judgment of reversal be set aside, and that the decree of the *Page 163 circuit court sustaining demurrer to the cross-bill be affirmed.
ANDERSON, C. J., and SAYRE, GARDNER, THOMAS, and BOULDIN, JJ., concur.