5 Ala. 618 | Ala. | 1843
By act of ¡the Legislature “ To authorise the amendments of writs of error,” 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 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 Dig. 312, § 39.] The provisions of this statute are so general as to require a writ of error to be amended in all cases where it is necessary to make it conform to the record which accompanies it. Wo cannot then repudiate this cause because there'are too many parties to the writ of error, or because the plaintiffs are liable in different rights, but should rather make the proper amendment.
In regard to the objection that the writ of error does not correctly describe the judgment in the record, it may be again remarked, that if necessary an amendment could be made, so that the former would harmonize with the latter. But we are inclined to think that as the entry made upon the determination of the motion is in proper form, the statement of the parties names upon the margin, if important, is amendable under the act of 1824, entitled An act to regulate pleadings at common law.” [Aik. Dig. 266; Armstrong v. Robertson & Barnwell, 2 Ala. Rep. N. S. 164; Drummond v. Wright, 1 Ala. Rep. N. S. 205.]
The decision of a court upon a motion addressed to its discretion, cannot be reviewed by an appellate court; hence the motion to strike out a plea, if refused, furnishes no sufficient ground of error, for it is competent for the court to put the plaintiff to his demurrer. [Johnson, adm’r, v. Wren, 3 Stewart’s Rep. 172;
The course always pursued in this State for the purpose of avoiding forthcoming bonds, or destroying .the effect of executions issued thereon, is by a motion such as was adopted in the present case. And it is impliedly recognized as correct by the act of 1807, which among other things, provides «If any forthcoming bond be quashed as faulty, the sheriff taking the same shall be at all times liable for damages to the party injured.”— [Aik. Dig. 171.] If such a proceeding be not allowable, the obli-gor of the bond would be without remedy, for though the law au-thorises an execution to issue on the bond, yet it is not regarded as a judgment upon which a writ of error will lie. [Taylor, et al. v. Powers, use, &c. 3 Ala. Rep. 285.]
The counsel for the defendant in error does not deny the power of the court to which a forthcoming bond is returned, to quash, either the bond or an execution issued thereon, but he insists that as the execution upon the levy of which the bond was given, is not made a part of the record by bill of exceptions, or otherwise,
We will not undertake to consider, whether to have authorised the circuit court to enter tain, the motion submitted by the defendants, it was necessary that notice should have been given to the plaintiffs, [Wilkerson, et al. Branham, at this term,] as the judgment upon the motion expressly affirms the appearance of the parties by attorney, and the argument of counsel thereon. This is quite sufficient to show that both parties were before the court, and is either an admission or a waiver of notice. [Bondurant v. Wood and Adams, 1 Ala. Rep. N. S. 542.]
The view taken disposes of the objections made by the counsel for the defendants, and we have now but to compare the bond and the fieri facias recited in the condition. The execution is