St. John v. Tombeckbee Bank

3 Stew. 146 | Ala. | 1830

By JUDGE CRENSHAW.

In this case, among other things, it is assigned for error “that it does not appear from the record to have been proved to the Court, that Robert H. Croswell was the acting Cashier of the Bank, at the time when the notice was served.”

In the case of the Huntsville Bank v. Walker, decider! in thisJCourt in 1825, from the Sheriff’s return, it appeared that notice had been served on William G. Hill, Cashier of the Bank, but the record did not show that any proof was offered to satisfy the Court, that Hill was Cashier. In giving their judgment, the Court expressly say, “that the Sheriff’s return proves only that service was made on a particular individual not that such individual, was Cashier; he being only an agent of the Bank, his identity must be ascertained as other facts are, by proof.” From the principle established by that decision, the Court is not inclined to recede, and it must be decisive of the present question.

In the case before us, the Sheriff has returned service of notice“on Robert H. Croswell acting Cashier of the Bank.” The judgment of the Court below merely recites the Sheriff’s return, setting forth “that due notice of the intended motion having been served on Robert H. Croswell, who was the person at that time acting as Cashier &e.” It does not appear from the judgment, or other part of the record, that there was any evidence before the Court to prove that Croswell was in fact the acting Cashier of the Rank.

Being satisfied that this is error, and that the judgment must be reversed on this ground, the Court having declined considering the other assignments of error.

Judgment reversed.