Arthur v. State

22 Ala. 61 | Ala. | 1853

LIGON, J.

The only point relied on in the argument by counsel for the plaintiffs in error, related to the notice given to Arthur, the sheriff, of the suggestion and motion against him in the court below. He insists that the judgment entry does not show such notice as will justify the judgment rendered, and that we cannot look to other parts of the transcript to aid it.

It is certainly true, that, in all summary proceedings by motion, the judgment, whether by default or otherwise, must show affirmatively every fact necessary to give the court this summary jurisdiction; and in judgments by default, the liability of the defendant must also be shown. Cary v. Bank of Mobile, 8 Por. 372; Yancey et al. v. Hawkins, Minor 171. It is also true, that, in cases in which the statute requires a certain notice to be given, the record must show that notice was given for the time and in the manner required. Atwood et al. v. Craig, 3 Stew. & Por. 21; Hartley v. Bloodgood, 16 Ala. 235.

But it is equally as clear, that, where the statute under which the proceeding is had does not, in terms, require notice to be given for a certain number of days, or is silent in respect to notice, it will be sufficient if the judgment entry shows that due or reasonable notice was given to the defendant. Brown v. Wheeler, 3 Ala. 287; Reed v. Jackson, 1 Ala. 207; Kirkman v. Hawkins, 1 Por. 22. In the last case cited, the first head-note may possibly mislead, and induce a belief that the two first are in confiect with it. But a careful examination of all the cases will show that there is harmony, and not conflict. Kirkman v. Hawkins decides, that the suggestion against the sheriff may be made without notice to him, but he must have reasonable notice of the motion for judgment founded on that suggestion. The cases of Brown v. Wheeler and Reed v. Jackson hold, that the party against whom the motion is made must have reasonable notice, and this must appear in the judgment entry, or the judgment will be erroneous.

The proceedings in this case were had under the act of 1826, (Clay’s Dig. 218, § 85,) wbicb does not, in terms, require any notice, either to the sheriff or his securities, of either the suggestion or motion; but we have held, that reasonable notice is necessary, and of the reasonableness of this notice the court before which the motion is made must judge. And if it appears in its judgment entry that due or sufficient notice had been given, the demands of the law will be satisfied. Such is the case here, and as the entry contained a recital of every other fact necessary to give the court jurisdiction, the judgment is regular.

Notice to the sheriff alone, in this proceeding, will justify a judgment against his sureties on his official bond, when it is made to appear, as it does here, that satisfactory evidence was produced to the court below of the fact of their surety-ship.

There is no error in the record, and the judgment is consequently affirmed.