Rutherford's Adm'r v. Smith

27 Ala. 417 | Ala. | 1855

RICE, J.

This is a summary proceeding, by one surety against' a co-surety, under -the act of 1821. — Clay’s Dig. 531, § 4. The motion is in writing, and was duly served; and alleges all the facts which are necessary to'give the Circuit Court jurisdiction, and to entitle the appellee to judgment against the appellant. This motion, and its service, constitute part of the record ; and upon it, issues appear to have been made up by the parties, and tried by a jury.

Although the proceeding is summary, yet, as the appellant (who was the defendant in.the motion) appeared, and pleaded, and formed issues, which were tried by a jury, it is like any other case commenced in the ordinary mode, except that it must appear upon the record that the court had jurisdiction to entertain the motion. — Smith v. Br. Bk. Mobile, 5 Ala. R. 26; Curry v. Bank, 8 Porter's R. 372; Broughton v. Robinson, 11 Ala. R. 929.

A mere comparison of the motion with the statute, shows that the motion sets forth every fact necessary to give the court jurisdiction. As the jurisdiction of the court appears upon the record, and the jury found the issues for the appel-lee, and no exceptions were taken in the court below, there is nothing to warrant a reversal of the judgment.

Judgment affirmed.