6 Ala. 908 | Ala. | 1844
The notice issued at the suit of a bank against its debtor, is certainly process by which the latter is to be brought into court to answer to an allegation of indebtedness. But after the motion is made, which it informs the party will be submitted, it is something more than pz'ocess; it is then to be regarded as the motion in writing identifying the debt sought to be recovered, and against which the defendant may urge any ground of defence recognized as available, according to legal forms. The notice, then, may be assimilated to a declaration: it subserves the purpose both of a writ and declaration, though it need not be so formal or techical in its allegations as the latter. Yet it should set out the evidence of indebtedness with such precision that the defendant may know, from an inspection of the notice itself, against what he is called on to make defence. From this view, it will follow, that it is allowable for the defendant either to demur to the notice, or plead to issue.
It is insisted that the demurrer interposed in the county court should have been sustained, because the notice states that the
In respect to the recital in the notice of the time when the note was discounted, this is certainly irreconcileablc with the description, and, allegation as to its date that follows. But as it is not essential to a notice in such case, that it should state at what time the bank became the proprietor of the paper, we think the recital in this respect might be.treated as surplusage, and where it disagrees with the description, be stricken out, without prejudicing in any manner so much as is material.
Where a suit is brought in the ordinary form, by a capias ad respondendum, it would be competent for a defendant to object that the action was instituted before the maturity of the debt; and in such case, the teste of the writ would be looked to, for the purpose of ascertaining when the action was commenced. [Randolph v. Cook & Ellis, 2 Porter’s Rep. 286.] But in a case like the present, no suit is pending until the motion is in fact submitted. The notice need not be dated, unless the date is made material by a reference to it as indicating the time when the motion will be made, &c. Hence the date, or the want of it, where it is not necessary to support some essential- part of the notice, cannot prejudice the plaintiff.
The time when the county court was to be holden, is to be ascertained by the date of the notice, and thus far the date would be essential to its regularity, if the time did not otherwise appear. But the sheriff’s return shows, when the notice was received by him and served on the defendant; and when this is referred to, it is sufficiently apparent at what term it was proposed to move for judgment. It cannot be objected to this view, that taking the description of the note contained in the notice to be correct, the notice was placed in the sheriff’s hands previous to the maturity of the note. Be this as it may, the indorsement of the receipt may b# considered as wholly unimportant, and as the notice was not executed until after the debt became due, it may be regarded as a good notice in the sheriff’s hands for the time intervening between its service and the maturity of the note. But were the law otherwise, the defendant could not object on demurrer that he was not regularly before the court; his appearance generally would preclude such an objection, and if it could
The'plea on which issue was taken, was a denial of the cause of action disclosed in the notice, and threw upon the plaintiff the onus of proving that the defendant, with the sureties^ designated, had made a note substantially conforming to that described.— The note produced at the trial is dated the 1st of February, 1843, and due on the first of June thereafter, while that described bears the same date, but is alleged to be due twelve months thereafter. This variance cannot be regarded as immateral. If the description is correct in the notice, (and if otherwise we cannot know it,) the note adduced as evidence was due eight months before that described in the notice, matured. For this discrepancy, it should have been rejected; and for not so adjudging the law, the county court erred. Its judgment is consequently reversed, and if desired, the cause will be remanded.
