Snelgrove v. Branch Bank at Mobile, 5 Ala. 295

Snelgrove v. Branch Bank at Mobile

5 Ala. 295 | Ala. | 1843

COLLIER, C. J.

1. The notice in express terms, requires “ Alfred Snolgrove and Aaron Livingston,” to be informed that the plaintiff below, will move for judgment against them, and when it is returned, served on “Snelgrove,” the conclusion of law.in the absence of a plea, denying the fact, is that he is the individual of that name, who is intended by the notice. As to proof of the official character of Burnett, none is necessary. We have repeatedly held, that we must know without proof who are sheriff’s •&c., in the different counties of this State. If we were not judicially charged with this knowledge, the mere statement by a person returning process, that he was sheriff of a particular county, would be no evidence of the fact.

2. In the present-case the judgment was rendered by default, and, as has been repeatedly held, in such cases, the notice, the office of which is to bring the defendant into court, and inform him what he is to answer, can only be looked to, when recited in the judgment entry for the purpose of curing defects. If the defendant would object to the cause of action set out in the notice he should appear and contest it; where this is not doné, we will not allow the recital in the judgment entry to be contradicted by the notice, even if it could be done under any circumstances. In this view, it is entirely immaterial whether the second assignment of errors, is sustained by the record, as it is not available.

3. The record, after stating that the note was made by the defendant, and Andrew Armstrong was the payee, avers that it “was duly and regularly indorsed to the said Branch of the Bank ‘of the State of Alabama at Mobile.” Now, the indorsement could only be duly and regularly made by the payee, and the averment recited must be considered as equivalent to a special allegation that such is the fact.

4. It is stated in the judgment entry, that the defendant had thirty'' days notice, that the plaintiff « on this day, would move for judgment against him.” Terms could not well be conceived more explicit to show, that the motion was made at the time indicated by the notice, even if it were essential to the regularity of the judgment that it should so appear.

5. The judgment, instead of being rendered in favor of the

*297plaintiff, by its corporate name, is, “ that the President of the Branch of the Bank of the State of Alabama at Mobile, recover, &c.” This is an irregularity, yet it must be regarded as a clerical misprision, not fatal to the judgment, but amendable under the act of 1824, “to regulate pleadings at common law,” at the costs of the plaintiff in error. It has been repeatedly adjudged, that a judgment against an executor or administrator, de bonis propriis, is a mere misprision, and by analogy, we think the mistake in the present case cannot be considered more serious.

There is then, no error which authorises the reversal of the judgment, but it will be so amended as to be rendered in the corporate name of the defendant in error, and the plaintiff will pay the costs of this court.