Ice v. Manning

| Ala. | Jun 15, 1841

COLLIER, C. J.

In respect to the evidence of a partial payment upon the note, as shewn by the transcript, it cannot * be regarded as a part of the record, but it must be considered', as it doubtless is, a mere memorandum of the clerk, copied from the note on file in his office. This is indicated as well from the absence of any statement connecting it with the record, as from its entire dis-connection with any thing preceding or following it.

The commencement of the judgment entry, would seem to show that both the defendants sued,, did appear, and upon the recital of the fact, a judgment against both would have been regular. Gilbert, et al. v. Lane, 3 Porter’s Rep. 267. But the succeeding part of the entry limits the generality of the terms employed, aud taken in connection with the sheriff’s return, shows what parties appeared, and against which of the defendants the judgment is rendered.

In Rivers v. Loving, 1 Stewart’s Rep. 395, the writ issued against two, and was executed on one only. The declaration was against both, and plea by “the defendant,” in the singular number, without distingushing which, and issue thereon; the Court held, that it was only the appearance of the defendant served with process. True, this case is not precisely anala-gous to the one at bar, yet in principle, it is not distinguishable.

If the second error assigned were fatal to the judgment, it would not avail here, for it asserts that the judgment is so uncertain, that it cannot be known against whom it is rendered. If this be the case, how could the defendant have sued out a writ of error, does not that writ issue upon the allegation, that he is injured by the judgment against him; and if the judgment were so uncertain, as it is insisted to be, the writ of error should be dismissed, and the defendant be left to his superse-deas. But we think the plaintiff in error is the party who is to satisfy the judgment of the Circuit Court; and consequently it is affirmed.