54 Ala. 296 | Ala. | 1875
The auditor of the State, by notice issued to and against 'William Falconer, late tax colleeter of Montgomery county, and five other persons as sureties on his bond, began proceedings for a summary judgment against them, in the circuit court of said county, for money received by said Falconer as such collector and not paid over. The proceeding is a statutory one under sections 3059 and 3060 of the Revised Code ; the first of which is as follows: “Judgment must in like manner be summarily rendered in favor of the comptroller of public accounts,” [now called auditor,] “against the defaulters hereinafter named,” [defaulting tax collectors and probate judges, § 3060,] “ and their sureties in the circuit court held at the seat of government, or in that of any county in which the defaulter, or his sureties-, may reside, on ten days notice.” The notice was served on some of the sureties for the tax collector, but not on the latter or his surety, Bowen; and afterwards, by order of the court, at the instance of the auditor, the action was discontinued as to them^and was declared abated as to another who had died; whereupon the remaining parties who had been served with notice o'f the motion, insisted that it was thereby discontinued as to them also, and moved the court for judgment accordingly; which being refused, they excepted. They now ask this court, by a writ of mandamus, to require the cause to be discontinued as to them in the circuit court. 4,
For petitioners, it is contended, that according to said sections 3059 and 3060, no judgment can be rendered in an action of this summary character, against the sureties, without it be rendered against the principal also. This would undoubtedly be so, if the proceeding were dependent on those sections alone. They are a portion of Article Y, of Chapter 3, in “ Title” 2, and Part 3, of the Revised Code; which “ chapter” relates entirely to “summary judgments,” and is divided into six “articles.” Of these, the first, with the heading, “General Rules,” contains several sections that are intended to be applicable to the proceedings relating to summary judgments against all the officers and persons mentioned as subject to them in the next five articles, except where otherwise expressly indicated. This arranging of the contents of a Code, so that one part shall be explained by another, is the object of such a work. Its very purpose is, by a division of statutes and a reduction of the parts under suitable titles into a systematic whole, to rid legislative enactments of the repetitions in which they are apt to abound, and so condense them within a compass convenient for use. Therefore, the sections above referred to, concerning sum
It remains to consider what effect was produced upon the action by the abatement of it as to the surety upon whom the notice was served, who afterwards died.
The law relating to “ summary judgments,” (as they are called in the Code), or summary proceedings authorized by statute, and not according to the course of the common law, has, in Alabama, always been strictly construed. Thejr are allowed only, or chiefly, against defaulting officers and their sureties, or defaulting attorneys charged with the collection of money for clients, or in favor of sureties against their principals whose debts the sureties have had to pay, or against co-sureties who have failed to do their part in such payments ;■ cases in which the evidence is generally direct and plain, and often of record, and the defendants, persons with whom, it is implied, the courts should promptly deal. The progress to judgment in such instances, is expected to be a speedy one. It is not comtemplated that it shall be delayed, as in the present case it seems to have been, by continuances from term to term, making the proceeding as dilatory as the more formal regular action. And this ought not to be done, unless, at least, entries have been made, pleas filed and issues formed, which will hold the parties to be in court as in a common suit, and relieve the action of the precarious character of a mere motion for a summary judgment.—See Smith v. Br. Bank, 5 Ala. 26; King, Administrator, v. Armstrong, 14 id. 393; Curry v. The Bank, 8 Port, p. 372; Rutherford's Administrator v. Smith, 27 Ala. 417. Eor, it is with a purpose that the remedy shall be “ summary”- — that is, be prompt and decisive — that in some cases, it is allowed by statute, upon a mere motion in court founded on a short notice from the mover.
Because the action is thus summary and out of the common order, the courts are particular to require that every
In Collier, Gov’r, v. Powell and Bradley, 23 Ala. 599, the motion was against the sureties of a deceased tax collector, under an act providing that the comptroller shall “ move the court for judgment against him and his sureties for the amount of the taxes not paid into the treasury; and that the court shall render judgment for such amount on proof of fifteen days notice to the tax collector against him and his sureties, or, when the collector absconds, or secretes himself, or, when the notice is returned ‘not found1 as to him, then against such of his sureties as may have been notified of the intended motion.” This act, so far as the question under consideration is concerned, is substantially the same as the sections of the Code applicable to the case before us. The court held that because the tax collector, although dead, was not a party to the notice, and it was not returned “not found” as to him, the motion could not be maintained against his sureties; a decision which seems not reconcilable with the cases of Williamson v. Br. Bank, 3 Ala. 504, and Bondurant v. Bank, 5 Ala. 172. See, also, Boring v. Williams, 17 Ala. 510.
In Ware v. Greene, 37 Ala. 494, which was also against a tax collector and some of his sureties, the notice of the motion was issued against the principal and four only of his six sureties. The omission of the other two was not in any way explained; and the- proceeding was undór the same sections of the Code which govern the cause now before us. The court held, that, being summary and highly penal, (25 per cent. damages are allowed,) it “must be pursued in strict conformity to the law authorizing it,” and that although under § 2597 of the Code (3026, supra, of the Revised Code), perhaps judgment might be rendered against “so many of the sureties as received the notice, omitting those who were not served with notice, . . . neither that section nor any other authorizes the unexplained omission from the notice by which the proceeding is instituted, of a portion of the sureties.” Ch. J. Walker, in qualifying this judgment by the word “unexplained,” leaves it to be inferred that a satisfactory reason might, perhaps, be assigned for not instituting the motion by notice against all, in which case, the fact that
But, these cases all relate to the institution of proceedings, to the right of the plaintiff according to the law, and by virtue of the course he has taken, to maintain the motion for a summary judgment, and not to the effect of any thing after-wards done or suffered by one of the defendants, as of his becoming a bankrupt, or of his death. It would be contrary to the maxim, actus Dei nemini facit injurian, to hold that when a plaintiff had properly brought into court as defendants, several persons who are jointly liable to him, he should, by the death of one of them, be deprived of his right to recover of the others against whom the cause of action survives, and subjected to costs by the dismissal of his suit. Such is not the law applicable in that event. —Harrison v. King, Minor, 364; Piffin v. Fenton, Cro. Cas. 426; 1 Bac. Abr. (Bronv. Ed.) 14; Sumner v. Tileston, 4 Pick. 308.
The motion for a writ of mandamus, requiring the circuit court to order an entry of discontinuance, is denied with costs.
