68 Ala. 352 | Ala. | 1880
This cause originated before a justice of the peace and is founded on a witness certificate, issued to tbe appellee by the clerk of the Circuit Court of Dallas county, for the sum of five dollars and twenty cents. The justice rendered;, judgment in favor of the appellee, from which the defendants, now appellants, appealed to the Circuit Court. Failing to appear and prosecute their appeal, a judgment by default was rendered against them ; tbe judgment of the justice was affirmed and a procedendo awarded to the justice. The only error now assigned, is the judgment of the Circuit Court; and in support of it we have not been furnished with brief or argument.
A witness certificate is a prima facie cause of action in favor of the witness against the party to whom he has rendered the service "of attendance upon the court. It is issued and signed by the clerk of the court in the performance of an official duty imposed by statute. An action may be maintained upon it immediately ; the witness is not bound to wait tbe termination of the suit.—Hill v. White, 1 Ala. 576; Marsh v. Br. Bank of Mobile, 10 Ala. 57. It is assignable, and the assignee will have a right of action thereon in his own name.—Carville v. Reynolds, 9 Ala, 969. When in an action upon it a judgment by default is rendered, tbe judgment may be made final without tbe intervention of a jury ; it is an instrument of writing ascertaining the plaintiff’s demand.—Code of 1876, § 3032.
When a cause in which a justice of tbe peace has rendered judgment is removed into tbe circuit court, it is triable de novo. The judgment rendered -by the circuit court should
As corrected the judgment will be affirmed.