Del Barco v. Branch Bank at Mobile

12 Ala. 238 | Ala. | 1847

GOLDTHWAITE, J.

1. Most of the assignments of error refer to supposed irregularities in the bond given by the claimant for the redelivery of the goods seized, in the event of their condemnation, but these cannot be examined in the first instance in this court. If the bond does not conform to the statute, or is otherwise so irregular that under the statute the plaintiff would have.no authority to sue execution upon it, the proper course would be to supercede the execution by application to the court below, or to a judge of the circuit court in vacation.

2. Upon the record, as between the plaintiff in execution and the claimant, all is regular, if the joinder of issue (which in the transcript is stated as being made by the claimant, R. A. Hardaway) is kept out of view. This cannot in any manner control the effect of the judgment entry, which after stating the title of the cause, as one in which W. A. Hardaway is defendant in execution, and Del Barco claimant, proceeds to set out that upon the issue joined between the plaintiff and the said claimant, a verdict was returned and judgment entered. It is impossible to presume this entry was made in a suit between the plaintiff and R. A. Hardaway. The constant course of practice in this court, is to reject all matters which are inconsistent with the judgment entry, or to consider them as clerical misprisions, which amend themselves, by reference to other parts of the record. This inconsistent joinder of issue, upon the plaintiff’s allegation that the property levied on was subject to the execution, in our judgment must be rejected, and then the record is free from error.

Judgment affirmed.