Pait v. Pait

19 Ala. 713 | Ala. | 1851

CHELTON,. J;

The.- statute declares that “ in-- all' cases where judgment shall be entered- up in any court of record, or by any: justice of the peace,, against any.-person or persons as sc-curity or- securities, their executors or administrators, .upon any note, bill, bond, or obligation,, and in all cases where execution shall be awarded by, or issued from-any-of the courts of record, or any justice of. the peace,.against any person or persons as security-or securities, &c., .upon any bond, .&c., and the amount of such judgment or obligation, or any part thereof, hath been paid or discharged by such security or securities, his heirs, j&c., it shall be lawful for such security, &c., to-obtain judgment; by motion-, against such principal obligor or obligors, ,<&c., in- any court,..&e., where such judgment may have been entered‘up, and execution awarded’against such security-or securities, ,&c.,. for the full amount which may have been paid, with interest,”" &c. — Clay’s Dig. 581, § 3.

The. notice in this case, which was treated'as the-motion, and : to which a-demurrer was sustained by the Circuit Court, .although exceedingly informal, yet when properly analyzed, will-: be found to present a case which falls within the substantial re- - quirements of the statute*.

It shows the execution of a note, which is described with great particularity, .the date, amount, when and to whom payable, and that the defendant was the principal, and the. plaintiff his secu-.-rity p. that judgment upon this note was rendered at a certain.' term-of the County Court of Talladega county, and execution was issued thereupon, and the plaintiff’s payment of three hun-drcd-dollars on said judgment, in consequence of which he moves lor judgment against the principal, .for the amount paid and interest.. Now, .although it is not stated in whose favor the judg-, menfe was rendered, nor the amount of it, nor the time when the three hundred dollars was paid, yet we think the judgment being, in the same court, reference may be bad to it to supply these formal defects,...and the party can be allowed to prove the time of liis payment, as to fix the date from,-which interest would accrue. It woukkcertainly have been, more.-regular to. have dc-scribed the judgment accurately,, referring the court to>itr and to have set out the time of the .payment;; and I confess I have-had some difficulty in sustaining: the motion,, as I am indisposed to encourage such loose mode of pleading*. But as the defects can hardly be sank to be substantial, w-e think the demurrer should have been overruled.

Let the judgment be reversed, and' the- cause remanded..