fact has been established, the better opinion seems to be that the nature of the judgment may be proved by parol evidence.1 Where the statute under which an action was brought has been repealed after the rendition but before entry of a judgment, it may be entered as of a time when the statute was in force;2 but an application for the entry of judgment nunc pro tunc was refused where the jurisdiction of the court over that class of cases had been withdrawn after judgment had been rendered.3 The entry of judgments nunc pro tunc will be made only on such conditions, express or implied, as will preserve the rights of third parties having no notice of the rendition of judgment.4 With this exception, judgments entered nunc pro tunc have the same force and effect as judgments entered of proper time.5 6 The application for the entry of judgment nunc pro tunc may be made without notice in those States where the terms of the judgment must be proved by record evidence, but in other States notice of the application must be given to the adverse party." IV. EFFECT OF JUDGMENTS UPON PERSONS-1. Parties to Judg. ments (a) GENERAL PRINCIPLES.-A judgment is binding upon a party to the action, although he was served with process by a the law does not so provide. Hudson v. Hudson, 30 Ala. 364. It may be shown by an entry in the motion docket. Yonge v. Broxson, 23 Ala. 684. Or by memoranda by the clerk in his issue docket, and upon a special finding of facts by the court in the cause, with his conclusions of law thereon. Chissom v. Barbour, 100 Ind. 1. See also Ex parte Jones, 61 Ala. 399. 1. Bobo v. State, 40 Ark. 224; Weed v. Weed, 25 Conn. 337; Johnson v. Wright, 27 Ga. 555; Brownlee v. Commissioners, 101 Ind. 401; Aydelotte v. Brittain, 29 Kan. 98; Rugg v. Parker, 7 Gray (Mass.) 172; s. c., 9 Gray (Mass.) 209; Frink v. Frink, 43 N. H. 508; State v. McAlpin, 4 Ired. (N. Car.) 140; Davis v. Shaver, 1 Phill. (N. Car.) 18; Burnett v. State, 14 Tex. 455: Doe v. Litherbery, 4 McLean (U. S.) 442. Compare Perkins v. Perkins, 27 Ala. 479; Herring v. Cherry, 75 Ala. 376; Metcalf v. Metcalf, 19 Ala. 319; Dickens v. Bush, 23 Ala. 849; Short v. Kellogg, 10 Ga. 180; Gamble 7. Daugherty, 71 Mo. 599; Secon v. Levoux, I N. Mex. 388; Waldo v. Beckwith, 1 N. Mex. 97. 2. Springfield v. Worcester, 2 Cush. (Mass.) 52. 3. Ludlow . Johnson, 3 Hamm. (Ohio) 553. Compare Freeman on Judg. (3rd ed.), § 65. 4. Acklen . Acklen, 45 Ala. 609; Jordan v. Petty, 5 Fla. 326; McCormick v. Wheeler, 36 Ill. 114; Small . Douthitt, 1 Kan. 335; Graham v. Lynn, 4 B. Mon. (Ky.) 18; Galpin v. Fishburne, 3 McCord (S. Car.) 22; s. c., 15 Am. Dec. 614; Hays v. Miller, 1 Wash. Ty. 163; Urbanski, v. Manus, 87 Ind. 585; Smith v. Hood, 25 Pa. St. 218; Vroom v. Ditmas, 5 Pai. (N. Y.) 528. Third parties affected should have notice of the application. Koch v. Atlantic etc. R., 77 Mo. 354. 5. Reid v. Morton, 119 Ill. 118; Nabers v. Meredith, 67 Ala. 333; Jordan v. Petty, 5 Fla. 326; Graham v. Lynn, 4 B. Mon. (Ky.) 18; Rugg v. Parker, 9 Gray (Mass.) 209; Davis v. Shaver, i Phill. L. (N. Car.) 18; Burnett v. State, 14 Tex. 455; Huggins v. Oliver, 21 S. Car. 147. 6. Fuqua v. Carriel, 1 Minor (Ala.) 170; s. c. 12 Am. Dec. 46; Glass v. Glass, 24 Ala. 468; Nabers v. Meredith, 67 Ala. 333; Portis v. Talbot, 33 Ark. 218; Stokes v. Shannon, 55 Miss. 583; Long v. Stafford, 103 N. Y. 274. 7. Freeman on Judg. (3rd ed.), § 64; Weed 7. Weed, 25 Conn. 337. wrong name.1 A motion for an entry nunc pro tunc requires no pleadings; nor can the sufficiency of the motion be tested by demurrer or motion to strike out. Urbanski v. Manus, 87 Ind. 585. 1. Guinard v. Heysinger. 15 Ill. 288; Johnston v. San Francisco Sav. Union, 75 Cal. 134; Bank v. Jaggers, 31 Md. 38; Smith v. Bowker, 1 Mass. 76; Barry 7. Carothers, 6 Rich. (S. Car.) 331; Lafayette Ins. Co. v. French, 18 How. (U. S.) 409; Oakley v. Giles, 3 East 168. The identity of the parties to a former suit may be shown by evidence aliunde where it is not established by the record. Garwood v. Garwood, 29 Cal. 514; Thompson v. Manrow, 1 Cal. 428. A party defendant was held bound by a judgment, though his name was omitted from the margin of the entry upon the record, upon the ground that the judgment should be construed with reference to the prior proceedings. Wilson v. Collins, 11 Humph. (Tenn.) 189. 2. Puckett v. Pope, 3 Ala. 552; Chester v. Miller, 13 Cal. 561; Edwards v. Toomer, 14 Sm. & M. (Miss.) 76; Hubbard v. Dubois, 37 Vt. 94. Compare Blood v. Crandall, 28 Vt. 396. See also Langley v. Grill, 1 Col. 71. Where a nol. pros. has been entered as to part of the defendants, a judgment against "defendants" will be construed as not including those to whom the nol. pros. was entered. Boyd v. Bayham, 5 Humph. (Tenn.) 386. 3. Hurlbutt v. Butenop, 27 Cal. 50; Kerr v. Blodgett, 48 N. Y. 66; Wilder v. Keeler, 3 Pai. (N. Y.) 167; s. c., 23 Am. Dec. 781; Carpenter z. Canal Co., 35 Ohio St. 307. See also Davidson v. State, 63 Ala. 432; Follansbee v. Walker, 74 Pa. St. 306. The interest of cestuis que trustent may be barred without making them all parties where they are very numer ous. Shaw . Norfolk County R. Co., "But this rule applies only to cases 4. Buffington v. Cook, 35 Ala. 312; A judgment against joint defendants Where defendants, especially in Though in proceedings to probate a action were adversaries in the first action, the judgment is binding upon them, although the second action does not include all the former parties; and sometimes the same rule obtains where there are additional parties in the second action. Judgment estoppels must be mutual.3 As a rule, a judgment is not admissible in evidence for or against a stranger to the action in which it was rendered.4 An agent or attorney is not estopped by a tween legatees and devisees having adverse claims. De Mora v. Concha, 29 Ch. D. 268. A judgment does not necessarily bind all parties to the action, for it may be rendered on a special issue joined between a portion of them only. Harvey v. Osborne, 55 Ind. 535; Goodnow v. Stryker, 62 Iowa 221. A judgment finding that one of two defendants owned the land in controversy was held binding on the other, although defendants pleaded separately. Devin . Ottumwa, 53 Iowa 461. 1. Devin v. Ottumwa, 53 Iowa 461; State v. Krug, 94 Ind. 366; Davenport 7. Barnett, 51 Ind. 329; Lawrence 7. Hunt, 10 Wend. (N. Y.) 80; s. c., 25 Am. Dec. 543; Ehle v. Bingham, 6 Pai. (N. Y.) 139; s. c., 7 Barb. (N. Y.) 494; Russell v. Farquhar, 55 Tex. 355; Girardin v. Dean, 49 Tex. 243; Western M. Co. v. Virginia Coal Co., 10 W. Va. 250; Thompson v. Roberts, 24 How. (U. S.) 233; Pollard v. N. Y. R. etc. Co., 101 U. S. 223. Compare Christy 7. Tancred, 9 M. & W. 438; Buttrick 7. Holden, 8 Cush. (Mass.) 233. 2. Meagley v. Binghamton, 36 Hun (N. Y.) 171; Bank v. Ketchum, 66 Wis. 428; Blakemore v. Canal Co., 2 C. M. & R. 133. But see Hawes 7. Waltham, 18 Pick. (Mass.) 451. Where in an action against a portion of joint promisors they waive the nonjoinder of others and judgment is rendered in their favor, such judgment is a bar to an action against all the promisors. French v. Neal, 24 Pick. (Mass.) 55. 3. IIarris υ. Plant, 21 Ala. 639; Bradford v. Bradford, 5 Conn. 127; Simpson v. Pearson, 31 Ind. 1; Edwards v. McCurdy, 13 Ill. 496; Huntington v. Jewett, 25 Iowa 249; Allen v. Carter, 8 Pick. (Mass.) 175; Burgess v. Lane, 3 Greenl. (Me.) 165; Griswold v. Jackson, 2 Edw. Ch. (N. Y.) 461; Redmond . Coffin, 2 Dev. Eq. (N. Car.) 443; Chandler's Appeal, 100 Pa. St. 262; Simpson v. Jones, 2 Sneed (Tenn.) 36; Manigault v. Deas, 1 Bai. Eq. (S. Car.) 283; Wright v. Hazen, 24 Vt. 143; Wood . Davis, 7 Cranch (U. S.) 271; Petrie 7. Nuttall, 11 Exch. 569; Spencer 7. Williams, L. R., 2 Pro. & D. 230. Compare Whately 7. Menheim, 2 Esp. 608; O'Brien v. Heeney, 2 Edw. Ch. (N. Y.) 246. 4. Newlin v. McAfee, 64 Ala. 357; Young 7. Stontz, 74 Ala. 574; Cain v. Sheets, 77 Ala. 492; Chase v. Swain, 9 Cal. 130; Mayo v. Wood, 50 Cal. 171; Burdick . Norwich, 49 Conn. 225; Betts 7. New Hartford, 25 Conn. 180; Scates v. King, 110 Ill. 456; Samuel v. Agnew, 80 Ill. 553; Cole v. Lafontaine, 84 Ind. 446; McDonald v. Gregory, 41 Iowa 513; Stoddard v. Burton, 41 Iowa 582; Hine v. K. & D. R., 42 Iowa 636; Stoddard v. Thompson, 31 Iowa 80; Goodnow v. Litchfield, 63 Iowa 275; Montgomery County v. Severson, 64 Iowa 326; Peters v. Spitzfaden, 24 La. An. 111; Dooley v. Potter, 140 Mass. 49; Rice v. Coolidge, 121 Mass. 393; Shutesbury v. Hadley, 133 Mass. 242; Salem 7. Eastern R., 98 Mass. 431; Buttrick . Holden, 8 Cush. (Mass.) 233; Iill v. Stevenson, 63 Me. 364; s. c., 18 Am. Rep. 231; Quigley v. Mexico Bank, So Mo. 289; Henry v. Woods, 77 Mo. 277; McMahon v. Merrick, 33 Minn. 262; Davis Machine Co. v. Barnard, 43 Mich. 379; McKay v. Kilburn, 42 Mich. 614; Gourand . Gourand, 3 Redf. (N. Y.) 262; Springport 7. Teutonia Bank, 75 N. Y. 397; Bissell v. Kellogg, 65 N. Y. 432; Fisher . Banta, 66 N. Y. 468; Raymond v. Richmond, 78 N. Y. 351; Remington Paper Co. 7'. O'Dougherty, 81 N. Y. 474; Meltzer z. Doll, 91 N. Y. 365; Vaughan . Morrison, 55 N. H. 580; Peebles v'. Pate, 90 N. Car. 348; Buckingham v. Ludlum, 37 N. J. Eq. 137; Dodd v. Una, 40 N. J. Eq. 672; Hutchinson v. Wheeling Bank, 41 Pa. St. 42; Macky v. Coates, 70 Pa. St. 350; Chandler's Appeal, 100 Pa. St. 262; Glaze v. Watson, 55 Tex. 563; Read v. Allen, 56 Tex. 182; Williams 7. Williams, 63 Wis. 58; s. c., 53 Am. Rep. 253; Gerrish v. Bragg, 55 Vt. 329; Society etc. v. Hartland, 2 Paine (U. S.) 536; Goodman 7. Niblack, 102 U. S. 556; Brooklyn etc. R. Co. v. National Bank, 102 U. S. 14; Halev, Finch, 104 U. S. 261; Flanders 7. Seelye, 105 U. S. 718; McIntosh v. Jarvis, 8 Up. Can. Q. B. 535. But see School Directors v. Hernandez, 31 La. An. 158; Louisiana Levee Co. v. State, 31 La. An. 250; Folger v. Palmer, 35 La. An. 743. A judgment does not bind an original party to the suit who has been. permitted to withdraw. Owens . Alexander, 78 N. Car. 1. Compare Am. Bell Telephone Co. v. National Tel. Co., 27 Fed. Rep. 663. A judgment against a surviving partner is not an estoppel against the representative of a deceased partner. Buckingham v. Ludlum, 37 N. J. Eq. 137. A purchaser at a tax sale is not bound by a decree in a suit against the county treasurer to enjoin the issue of the tax deed. Helphrey 7. Redick, 21 Neb. 8o. A judgment against an officer for wrongfully attaching goods is not conclusive against a purchaser at the officer's sale. McKay v. Kilburn, 42 Mich. 614. See also Hunt . Haven, 52 N. H. 162. The officer who served a summons, not having been a party to proceedings setting it aside, is not bound by them, but may attack their regularity and validity in an action against him for a false return. Mabbett v. Vick, 53 Wis. 158. A sheriff having possession of property under a writ of attachment is not bound by the judgment in a replevin suit to which he was not a party, and in which he was not served with process, and did not appear, and which he did not defend, although his under sheriff, as an individual, was a party to the suit. Geekie v. Kirby Carpenter Co., 106 U. S. 379. A judgment for plaintiff in an action of replevin against a police officer for property taken on a search warrant is not a bar to an action for conversion of the same property brought by the alleged owner against the plaintiff in the former action. Scott. Drennen, 9 Daly (N. Y.) 226. It has been held that a servant or agent sued separately for infringing a patent is not bound by a former judgment against the master or principal upon the question of the validity of the patent. Hayes v. Bickelhoupt, 24 Fed. Rep. S06. A judgment against an endorser is not evidence for him against the maker. Fenn v. Dugdale, 31 Mo. 580; Brooklyn etc. R. Co. v. Republic Bank, 102 U. S. 14. A judgment against the plaintiff in an action for trespass is not evidence against him in an action against another joint trespasser. Sprague v. Oakes, 19 Pick. (Mass.) 455. A judgment in favor of one creditor, declaring a conveyance by the debtor void, is not evidence in favor of another creditor. Winston v. Starke, 12 Gratt. (Va.) 317. A decree of dismissal in a divorce suit is not evidence against third persons of the facts found therein. Needham v. Brenner, 12 Jur., N. S. 434; 14 W. R. 694. See also Burlen v. Shannon, 3 Gray (Mass.) 387. A judgment against the defendant in a criminal case is evidence for the State in a civil action for the same offence. Webbs v. State, 4 Coldw. (Tenn.) 199. Seemingly against the general principle it has been held that where a defendant defended an action and was compelled to pay to the plaintiff money belonging to another, the judgment was a defence to an action by the true owner. Mayer . Foulkrod, 4 Wash. (U. S.) 349. Compare Schrauth v. Dry Dock etc. Bank, 86 N. Y. 390. And a finding by the jury that a person was not an endorser but the original promisor of a note, was held binding on all other parties to the note. Sturtevant 7. Randall, 53 Me. 149. It has been held that a town sued for injuries from an obstruction in a highway might set up by way of estoppel a judgment in favor of the defendant in a former action brought by the same plaintiff to recover for the same injuries against a person alleged to have caused the obstruction. Hill v. Bain, 15 R. I. 75; s. c., 2 Am. St. Rep. 873. A judgment in favor of an infant son suing by a guardian ad litem for injuries was held sufficient proof that the injuries were caused by defendant's negligence in a subsequent action by the father against the same defendant. Anderson v. Third Av. R., 9 Daly (N. Y.) 487. But a judgment in favor of the wife of the plaintiff in a former action for the same injury complained of was held not to be admissible in favor of the husband. Neeson v. Troy, 29 Hun (N. Y.) 173. See also Groth v. Washburn, 39 Hun (N. Y.) 324. Π judgment because he conducted the suit ; nor is a witness bound by a judgment in an action in which he testifies,2 But in the absence of fraud and collusion, a judgment is conclusive evidence, even against a stranger, of the relation of debtor and creditor between the parties thereto,3 and of the amount of the indebtedness. As a muniment of title, also, a judgment may be conclusive evidence against a third person.5 Ordinarily, a judgment against a deceased party is erroneous but not void.6 1. Breedlove v. Turner, 9 Mart. (La.) 353; Thrasher 7. Haines, 2 N. H. 443. 2. Blackwood v. Brown, 32 Mich. 104; Wright v. Andrews, 130 Mass. 149; Yorks v. Steele, 50 Barb. (N. Y.) 397; Schrauth v. Dry Dock etc. Bank, 86 N. Y. 390; Parker v. Moore, 59 N. H. 454. Nor is he estopped to deny what he admitted as a witness. Wilkinson 7. Thigpen, 71 Ga. 497. Compare Folger v. Palmer, 35 La. An. 743. Unless in a proper case the admission has been acted upon. Leinkauff v. Munter, 76 Ala. 194. An indemnitor who acts as a witness may be estopped by the judgment. Barney . Dewey, 13 Johns. (N. Y.) 224, 3. "Supposing such third persons were not bound with or for the parties found liable," the rule applies. Big. on Estop. (4th ed.) 142. See Pickett v. Pipkin, 64 Ala. 520; Fuller v. Foote, 56 Conn. 341; Way v. Lewis, 115 Mass. 26; Cutter v. Evans, 115 Mass. 27; Brigham v. Fayerweather, 140 Mass. 411; Wingate v. Haywood, 40 N. H. 437; Raymond 7. Richmond, 78 N. Y. 351; Pray v. Hegeman, 98 N. Y. 351; Curtis v. Leavitt, 15 N. Y. 9; Hall v. Stryker, 27 N. Y. 596; Swihart 7. Spaum, 24 Ohio St. 432; Cincinnati 7. Dickmeier, 31 Ohio St. 242. で。 According to some authorities, the judgment is prima facie evidence in such cases. Atkins Hosley, 3 Thomp. & C. (N. Y.) 325; Garland 7. Rives, 4 Rand. (Va.) 282; s. c., 15 Am. Dec. 756. 4. Candee v. Lord, 2 Comst. (N. Y.) 269; s. c., 51 Am. Dec. 294; Voorhees 7. Seymour, 26 Barb. (N. Y.) 569; Sidensparker v. Sidensparker, 52 Me. 481; Hills v. Sherwood, 48 Cal. 386; Chamberlain v. Carlisle, 26 N. H. 540. See also infra, this title, JUDGMENTS AS EVIDENCE. Partnership. A judgment in a suit determining the existence or nonexistence of a copartnership relation between the parties thereto is not binding or admissible in evidence against strangers to such proceeding. McDonald v. Matney, 82 Mo. 358. 5. "A distinction has been made between cases where the only fact to be established is the right of a creditor against the judgment debtor himself and cases where such a right may incidentally affect third persons, as where a person is affected by a chain of title. under a judgment sale and conveyance. In this case it is held that third persons cannot impeach the judgment." Big. on Estop. (4th ed.) 142; Taylor 7. Phelps, i H. & G. (Md.) 492; Barney v. Patterson, 6 H. & J. (Md.) 182; Baylor v. Dejarnette, 13 Gratt. (Va.) 172. See also Inman v. Mead, 97 Mass. 310; Casler 7. Shipman, 35 N. Y. 533; Secrist v. Green, 3 Wall. (U. S.) 744See also infra, this title, JUDGMENTS AS EVIDENCE. Compare Pratt 7. Jones, 64 Tex. 694. 6. Deceased Persons.-See generally DEATH, vol. 5, p. 130, et seq.; Powell v. Washington, 15 Ala. 803; Elliott v. Paterson, 65 Cal. 109; Phelan 7. Tyler, 12 Pac. C. L. J. (Cal.) 38; Collins 7. Mitchell, 5 Fla. 364; Stoetzell v. Fullerton, 44 Ill. 108; Spalding v. Wathen, 7. Bush (Ky.) 659; Case v. Ribelin, 1 J. J. Marsh. (Ky.) 30; Hayes v. Shaw, 20 Minn. 405; Reid v. Holmes, 127 Mass. 326; West v. Jordan, 62 Me. 484; Coleman 7. McAnulty, 16 Mo. 173; Webber v. Stanton, 1 Mich. N. P. 97; Jennings v. Simpson, 12 Neb. 558; Swasey v. Antram, 24 Ohio St. 87; Yaple v. Titus, 41 Pa. St. 195; Day v. Hamburgh, 1 Browne (Pa.) 75; Carr v. Townsend, 63 Pa. St. 202; Collins 7. Knight, 3 Tenn. Ch. 183; Taylor . Snow, 47 Tex. 462; s. c., 26 Am. Rep. 311: Fleming v. Seeligson, 57 Tex. 524; Milan County v. Robertson. 47 Tex. 222; McClelland v. Moore, 48 Tex. 355; Holt v. Thacher, 52 Vt. 592; Neale v. Utz, 75 Va. 480. Compare McCreery 7. Everding, 44 Cal. 286; Edwards v. Whited, 29 La. An. 647; McCloskey v. Wingfield, 29 La. An. 141; Parker v. |