Farr v. State

6 Ala. 794 | Ala. | 1844

COLLIER, C. J.

The attorney general has moved to dismiss the writ of error in this case, because the final judgment against the defendants is several, and they cannot, consequently, join in a proceeding for its revision. In Howie & Morrison v. The State, [1 Ala. Rep. N. S. 113,] this court said, that where there are several judgments against two or more recognizors, although contained in the same entry, neither of them have any interest or concern with the judgment against the other; and they cannot, therefore, join in the prosecution of the writ of error. — ■ The case cited, is directly in point, and the writ of error would be dismissed, but for the act of 1843, “to authorize the amendment of writs of error,” which has been subsequently passed.— By the first section of that statute, it is enacted that “all writs of error wherein there shall be any variance from the original record, either in the name or the number of the parties, the form of the action, or other defect, may and shall be amended, and made agreeable to such record, by the respective courts, where such writ or writs of error shall be made returnable, under such rules and regulations as the supreme court may prescribe.” [Clay’s Lig. 312, § 39.]

In the case at bar, there is no variance in the writ of error from the record, &c. yet it is defective in embracing two distinct judgments. With a view to prevent its dismissal in toto, the counsel for the plaintiffs in error, proposes to amend it by striking out the name of Fan- and removing the record and judgment as to Simpson alone. We think the very beneficial statute which has been noticed, embraces in its spirit and intention, such a state of case, and that the amendment must be allowed.

In Howie & Morrison v. The State, ut supra, it was said to be essential that the record should should show that the accused was required to answer the charge specified in the recognizance; this, it was supposed, was necessary to show a breach of the recognizance: Further, that if suit were instituted upon the recog-zance, such an allegation would be necessary to show a breach of its condition; and as much certainty was necessary in a judgment nisi, as in staling the breach in an action of debt. The principle thus laid down, applies with all force to the case before us; ■for it is not stated for what cause the appearance of Farr was ■required. And the judgment nisi being defective, the subsequent proceedings which depend upon it for their regularity, cannot be sustained.

This view is conclusive of the case, and shows that the judg-. inent of the circuit court must be reyersed, and the cause rpr rpRufied,