Letondal v. Huguenin

26 Ala. 552 | Ala. | 1855

RICE, J.

—If the provisions of the Code only governed this case, the judgment by default could not be supported; because on the mere levy of an attachment, it was rendered at the first term after such levy, and on the first day of the term. Code, § 2570; Pruitt v. Clack, 9 Porter’s R. 286.

But the provisions of the Code, in this class of cases, are materially modified by the act of 17th February, 1854, whenever such cases are brought in the Circuit or City Court of Mobile.— Pamphlet Acts of 1853-4, pp. 91-2.

The attachment in this case was levied more than twenty days before the case was placed on the docket and the judgment by default taken. ' It therefore stood for trial on the day the judgment was rendered, under the provisions of the 6th section of the act of 1854 above cited, unless some law in existence at the passage of that act required a notice to be given.

If the attachment had been sued out against a non-resident, the then existing law would have required a notice to be given ; and in that case, judgmen t by default could not lawfully have been rendered at the first term ensuing the expiration of twenty days from the levy of the attachment.—Code, § 2510. But the attachment is not here sued out against a non-resident. It was levied on the goods and chattels of the appellant, and no person has been served or summoned as garnishee. In such a case as this, we know of no law which requires a notice to be given. And under the provisions of the act of 1854, supra, we hold, that the appellee did not take his judgment by default sooner than he was entitled to it.

The appellant contends, that the complaint, unaided by any proof whatever, is insufficient to authorize or sustain a judgment by default, because it does not show to whom the notes sued on were payable. We think otherwise. The complaint is in the form given by the Code for a complaint “ on promissory note, by payee against maker.” The legal effect of a complaint in this form, is the same as if it contained, in express terms, an averment that the note described in it was payable to the plaintiff in the action ; and under this form of complaint, a note not payable to the plaintiff would be inadmissible.

Under the recitals contained in the judgment entry, we feel bound to presume, that the complaint which is shown in the record was filed before the judgment by default was rendered. There is nothing contained in this record, which prevents us from applying to it the maxim, “ Omnia preesumuntur rite esse acta.”

We are satisfied there is no error in the record. Judgment affirmed,