Martin v. Avery

8 Ala. 430 | Ala. | 1845

ORMOND, J.

From the earliest period of this Court, it has been held that to sustain these summary judgments, it must appear affirmatively upon the record, that every fact was proved to exist, which is necessary to confer the jprisdiction upon the Court. That this rule is applicable to cases of this description, is shown by the case of Barton v. McKinney, 3 S. & P. 274.

The facts which would authorize the rendition of such a judgment as the present, are, the commencement of a suit by a nonresident — that the person sought to be charged became surety for the costs — that the suit has terminated — and lastly, the amount of the costs of the suit. Of fhesé facts, but one appears from the record to exist — that the plaintiff became the surety of one John Mosely; there is therefore no predicate shown to authorize the rendition of such a judgment. The record in the case of Mosely against the defendant in error, in connection with the bond of the plaintiff in error, might, it is true, show all these facts, as the judg'ment against the surety, is the consequence of a judgment against •the plaintiff in the principal suit; and if a certiorari had been asked for, it would have been granted to perfect the record. No suggestion having been made, we are constrained to reverse the judgment.

It is no objection that the surety was not notified of the motion. The statute authorizes the Coprt to render judgment for the costs, against the surety of a non-resident plaintiff, at the time of rendering final judgment against his principal. [Clay’s Dig. 317, § 30.] Let the judgment be reversed and the cause remanded.