Caldwell v. Guinn

54 Ala. 64 | Ala. | 1875

BRICKELL, C. J.

The demurrers to the motion are probably well taken, but we are not informed what action was had by the court on them, otherwise than by the recitals of the bill of exceptions. We must, under the authority of Petty v. Dill, 53 Ala., decline to revise the action of the court on the demurrers, as it is not shown by any entry of record of the judgment.

The statute authorizes a summary judgment, on motion, against a county treasurer and his securities, or any or either of them, having five days’ notice, in favor of the party to whom an allowed claim against the county is payable, or his legal representatives or assigns, if the treasurer, having funds, on demand made, fails to pay the same. — R. C. § 930. The remedy thus provided is summary and statutory, and a party pursuing it, must conform the proceedings strictly to the statute, or they cannot be supported.

The terms of the statute are that judgment can be rendered only against the sureties on whom notice has been served. The judgment before us was rendered against several persons as sureties of the county treasurer, none of whom are shown to have had notice, or to have appeared. Indeed, the record shows the county treasurer alone appeared. When notice is essential to a summary proceeding of this character, the record must affirmatively show it, as required by the statute, as against all who do not appear.—Arthur v. State, 22 Ala. 61. Nor is it shown by the record these persons were sureties of the treasurer when the alleged default occurred, or at any other time. The judgment against them could not be sustained, if the record disclosed notice, unless it also disclosed their appearance, and a trial on issue, or it affirmatively appeared the fact of suretyship was proved to the court.—McWhorter v. Marrs, Minor, 376; McRae v. Colclough, 2 Ala. 74. A county treasurer is not an officer of court, as to whom a motion entered on the motion docket is made notice, not only to the officer, but his sureties. — R. C. § 3027. He is a- county officer, not connected with the court, nor subject to its control, except by proceedings had in due course of law.

County claims are payable in the order in which they have been presented to, numbered, and registered by the county treasurer. — R. C. § 926. If the treasurer pays claims without the order of payment prescribed by the statute, he is guilty of _ an official default. It is competent for the holder of a senior claim, when prosecuting the summary remedy against him and his sureties, given by the statute, for a failure to pay, to show funds in the treasury which ought to have been applied to its payment, to prove the payment of junior claims by the treasurer. The treasurer may, in his defense, show the claims so paid were preferred claims, entitled by law to priority of payment, notwithstanding they were junior in registration. The fact that the time of such payment is not shown by the books of the treasurer, does not preclude him from proving it by other competent evidence.

Eor the error noticed, the judgment must be reversed, and the cause remanded.