Schaefer v. Adler

14 Ala. 723 | Ala. | 1848

COLLIER, C. J.'

It is certainly true that the statement of the cause of action which the statute requires to be filed, where a cause is removed by appeal from a justice of the peace to a higher court, need not be as precise and complete as a declaration, in alledging all the facts of which the defendant’s liability is predicated. Hanks v. Hinson & Patterson, 4 Port. R. 509. In the case at bar, the bill single designates its payee as “Dr. P. Schaefer,” and the statement alledges that “ Fr. Schaefer,” the payee indorsed it, that the indorsees sued the maker thereon within thirty days after its maturity, recovered a judgment in that suit, on which a fieri facias was issued, and placed in the hands of a constable of Talladega, (the county of the maker’s residence,) which had been returned “ no property found.” The mere recital of the statement is quite sufficient to show that it is unexceptionable — in fact it is a full disclosure of the plaintiffs ground of action, and is more special than is usual, or perhaps strictly necessary in such cases. If a special answer to the objections of the plaintiff in error be necessary, it may be answered, first, the statement explicitly shows, that the payee and indorser are the same individual: second, that it must be intended, that the execution against the maker was issued and returned before the institution of the suit against the indorser, and the allegation throws upon the plaintiff the onus of proving it: third, as to the maker’s residence in Tal-ladega, when the suit was brought, the statement required the plaintiff to show, that it was instituted in the proper county. The conclusions seem to us to be axiomatic, and we will not amplify this opinion by attempting to illustrate them.

In respect to the objection that there was no proof made before the justice of the peace, that the acknowledgment of service indorsed on the warrant against the maker was genuine, it may be answered, that the omission to prove that fact could not in any manner affect the validity of the judgment, even in a direct proceeding at the suit of the maker. Appeals from justices of the peace are directed to be tried de novo, and it would be altogether competent to sustain the judgment of the justice, in the appellate court, by proving the warrant was served, or its service acknowledged as the indorsement imports. If the maker admits himself properly in court, it cannot be allowable for the indorsee to insist that he was not, or require the fact to be proved ; and in making such proof, the defendants did even more than the law required.

We will not stop to inquire, whether the time intervening the issuing or serving, and the return of the summons against the maker, was as long as the law prescribes; for however this may be, an irregularity in this respect is not an incurable defect, even as between the parties; and if the maker had notice, and yielded to the jurisdiction of the justice he will be taken to have waived the irregularity. The defendant, the indorser, cannot certainly raise the objection, as it does not render the judgment a nullity. From this view it results, that the judgment of the circuit court is affirmed.