6 Ala. 193 | Ala. | 1844
The statute, under which this proceeding was had, will be found in Clay’s Dig. 534.
“ § 13. It shall be the duty of the judge of the county court, whenever application shall be made to him by the security or securities, or either of them, of any clerk or sheriff, or other officer, of any county in the State, to issue a citation to the said clerk, sheriff or other officer, to appear before him on some day therein named, not less than ten nor more than fifteen days, then and there to enter into a new bond, with good and sufficient securities, for the faithful execution of the duties of his office.”
“ § 15. If any clerk, sheriff or other officer, being duly served with a citation as aforesaid, shall fail or refuse to give the bond required as aforesaid, it shall be the duty of the judge of the county court to deci’ee the office of the said clerk, sheriff or other officer to be vacated ; and shall cause an entry thereof to be made on the minutes of the county court; and such vacancies shall be filled as now prescribed by law.”
By this law, a summary jurisdiction is conferred on the county •court, to be exercised in a mode particularly pointed out in the statute; and, according to all our decisions on this class of cases, from the earliest period of our judicial history, every fact necessary to give the court jurisdiction, and to authorize its judgment, must appear upon the record.
The judge cannot institute this proceeding of his own mere motion, but it must be at the instance of a surety of the sheriff, making application to him for that purpose. The record must not only show this, but we think it must also appear who the surety or sureties, who wish to be discharged from further liabili
The proceeding -is also fatally defective, because no day was set for receiving the new bond from the sheriff, the citation requiring him to appear within fifteen days from the date of the citation. In a proceeding so summary, and so penal in its consequences as this, it would be manifestly unjust that the court should have power to vacate the office, unless the sheriff had notice of the time when the court would adjudicate the matter, and such is the express requisition of the statute.
The judgment of the court, vacating the office, is also erroneous. It recites that the sheriff “ failed to present such a bond as the judge of the county court believed would sustain the interest of the county, and a faithful discharge of the duties of the office.” The only requisition the judge of the county court could rightfully make of the sheriff, was, that he should “ enter into a new bond, with good and sufficient securities, for the faithful execution of the duties of his office.” Whether the omission to present such a bond as, in the opinion of the judge, would sustain the interests of the county, was intended to mean that the sheriff failed or refused to execute a « new bond, with good and sufficient surety,” we are unable to say. The reason assigned for the judgment, is the opinion of the judge, which seems to have been formed on facts in evidence before him, but which are not disclosed. But the record, in such cases as these, must state facts, and not conclusions or deductions from facts which do not appear; otherwise, it would be impossible that the judgment of the inferior court could be reviewed in an appellate court.
The result of this examination is, that the judgment of the county court vacating the office of sheriff’of Randolph county, must be reversed.