Skinner v. McCarty

2 Port. 19 | Ala. | 1835

By Mr. Justice Hitchcock.

This was an action originally commenced before Isaac Pew, a Justice of the Peace for the county of Clarke, in favor of Charles McCarty, for the use of James S. Rowland, against one Silas .Scarborough and Thomas A. Skinner, onei of the plaintiffs in error, upon a note payable to McCarty, dated the 3d October, 1829, for nineteen dollars. At the trial before the magistrate, Scarborough appeared, and under oath, denied the execution of the instrument. Skinner did not appear, and the magistrate rendered judgment against him alone, by default, for the sum of nineteen dollars eighty-sight cents, on the 28th of August, 1830. On the 29th September, 1830, Skinner applied to Sam-, uel Wilkinson, Judge of the County Court for the County of Clarke, for a certiorari, to bring the case before that Court, and “ that all further proceedings • should be stayed in the caseupon which petition, the Judge endorsed an order in the following words • “ Mr. Thomas, Saunders — You will issue a writ of cer- “ tiorari, according to the prayer of the petitioner.— “ Signed,. Samuel Wilkinson, J. C. C. C.” Upon this order, the Clerk, Mr. Thomas Saunders, issued a cer-tiorari to the magistrate, to bring up his proceedings to the County Court; and took from the plaintiff in error, an instrument having all the formal requisites of a certiorari bond, signed by the plaintiff, hut which instrument is without any seals to the signatures of the parties.

At the December term, 1830, of the County Court, the certiorari was returned, with the proceedings of the magistrate, and the plaintiff filed a declaration against Skinner, but not against Scarborough; to •which declaration, Skinner, by his attorney, pleaded í,‘ nón-assumpsit,The case appears to have been, continued to February term, 1832, when a jury was called, who are named in the record, and “ on motion of the defendant’s attorney, the case was continued.” At February term, 1833, the case was tried before a jury, and a verdict was had for the plaintiffs, and a new trial was granted, and the cause was continued. At the February term, 1834, the case was again submitted to a jury, and a verdict was had for the plaintiffs for twenty-five dollars and twenty cents ; and a judgment was rendered by the Court against Thomas A. Skinner, the original defendant, together with James Magoffin and James McClure, the securities in the writ pf certiorari bond,” for the amount of the vprdict, with costs of suit.

To reverse this judgment, the case has been brought, by writ of error, into this Court, and has been subr mitted, without argument, upon the following assignments.

1. That the suit was originally brought against two, and when brought by certiorari into the County Court, the declaration was filed only against one, thereby creating a discontinuance,

2. That a jury was called at June term, 1831— that no juror was withdrawn, and no verdict rendered,; thereby also creating a discontinuance.

3. That judgment was rendered against the securities in the certiorari bond, when there is no statute authorising that summary mode.

4. That the certiorari bond is void, there being no seals: and,

5. That the bond is void • no bqnd being required by the fiat of the Judge granting the certiorari.

In relation to the first assignment, it is sufficient tq remark, that the defendant, Scarborough, having (under the provisions of the statute,^a which authorises ,a defendant, under oath, to deny the execution qf any instrument sued on,) denied that he had executed this note, or authorised any one to execute it for him; and the'other defendant, Skinner, having failed to appear, hut let judgment go by default, the case, as to Scarborough, was properly at an end, and could only be taken up by Skinner, and consequently, the declaration could only be filed against him.

Independent of this consideration, the defendant, Skinner, by pleading non-assumpsit to the declaration, thereby waived any error there might otherwise have been in the proceedings.

In relation to the second assignment, it appears that after the jury was called and sworn, the defendant applied for and obtained a continuance. He, therefore, cannot allege the want of the withdrawal of a juror, or the want of a verdict, as error; and besides this, he had the case twice subsequently submitted to a jury, without alleging a discontinuance in the Court below.

As to the third assignment, it may be remarked, that if the bond was properly taken and executed, the second section of the act of 182G,^a gives to the bond the force and effect of a judgment against all the obligors, and authorises execution to be issued against them.

It is alleged in the fourth assignment, that the instrument is void as a bond, there being no seals. This objection is considered by the Court, • to be properly taken. Sealing is a distinct and substantive requisite, , to constitute a perfect bond, and without it, the instrument is not binding on the parties. For this cause, the judgment below must be reversed, and a proper judgment rendered here, against Skinner, the defendant in the original suit below.

As to the fifth assignment, whether the bond would have been void, if otherwise perfect, for the want of the fiat of the Judge in granting the certioi'ari, no opinion is necessary ; and, as the caso has not been argued, none is givern

a Aik. Dig. 283 § 137.

a Aik. Dig. 165