42 Ala. 345 | Ala. | 1868
The requisites necessary to sustain a summary judgment, on notice and motion, have been often stated by this court. — See Connolly v. Ala. & Tenn. R. R. R., 29 Ala. 373, and authorities in that case cited.
In the present case, notice was given that the motion would be made, on Friday the 30th of November, 1866. The judgment entry shows that it was not made until the day after, which was the 1st of December. Appellant not appearing to contest the motion when it was submitted, and the record not showing that it was submitted at the proper time and continued to December 1st, the motion» by operation of law, was discontinued. — Cray et al. v. Bank of the State of Alabama, 11 Ala. 771.
Where a judgment by default or nil dicit, is rendered upon such a motion, the record must, notwithstanding, show the liability of the defendant for the debt or demand, and that the facts were proved which gave the court jurisdiction. — Andrews, Adm'r, v. Branch Bank, 10 Ala. 375. (In these respects, the record of the present case is defective.) But if the defendant does not appear and make up an issue to be tried by a jury, the court may receive proof of the requisite facts, and render judgment without the introduction of a jury. — Irwin v. Scruggs, 32 Ala. 516.
The notice, in such a case, though copied into the transcript, can not be looked to by an appellate court, unless it is made part of the record by proper reference. — Connolly v. Ala. & Tenn. R. R. Road, supra.
The objection of appellant that a' payment can not be obtained against the legal representative of the principal debtor, by á surety, in a proceeding like the present, can not be sustained, as the remedy in such case is expressly provided for by the act of December 6th, 1861, p. 19.
Judgment reversed, and a judgment must be here rendered dismissing the-proceeding in the court below.