128 Ala. 474 | Ala. | 1900
The certificate of the clerk shows that the record before us “contains a full and complete transcript of the record and proceedings” of the circuit court on the scire facias of Herzberg Bros, against Hollis. The record does not show that there had been any continuance of the scire facias proceedings at the term of court prior to that at which the judgment of revivor now appealed from was rendered. The certificate must, therefore, be taken as negativing any such continuance; and in the face of it we cannot presume for the purpose of supporting the judgment of revivor that the scire facias had been returned to and continued at the preceding- term so as to authorize a judgment by default on the. first day of the 'current term. And the presumption that a scire facias had been issued, executed and returned to the preceding term would avail nothing in this connection unless the cause had been continued at that term. So then this record presents a case of a judgment by default taken on the first day of the term at which the scvre facias was returned. The rule allows the defendant in such cases the first two days in which to plead; and its last clause cannot be construed so as to deny this right without entire practical emasculation of the rule itself. That clause, is in these words: * * * “but either party may demand a trial, at the return term although the court may not continue in session three days.” The true construction of this provision is, in our opinion, that when the court lias been in session
Reversed and remanded.