48 Ala. 232 | Ala. | 1872
This suit was commenced in 1867,-by the appellee, in the city court of Selma, against Eager and William Waddill, on a promissory note made by them in 1859. At the January term,. 1869, judgment was rendered against Eager, and the death of Waddill was suggested, and a scire facias asked for to his executor, the appellant. The citation was in these words:
“ The State of Alabama, j To any sheriff'' of the State-Dallas county. f of Alabama, greeting: You
are hereby commanded to summon J. Cooper Waddill to-*237 be and appear at the next term of this court, to be held ón the second Monday in July, 1869, and show cause, if any he have, why he should not be made a party defendant, as executor of William Waddill, deceased, to a suit now pending in said court, wherein Joseph E. John, guardian, &c., is plaintiff, and William H. Eager and William Waddill, jr.,. were defendants. And this you .shall in no wise omit, and make due return of this writ and the execution thereof,
“Witness my hand, this 29th day of March, 1869.
“E. M. Gantt, Clerk.”
Besides the sheriff’s receipt and return, there was indorsed on this process the following: “No. 536. Joseph E- John, guardian, vs. William H. Eager and William Wad-dill, jr. City court of Selma, July term, 1869.” At the July term, 1869, the cause was revived against the appellant.
At the fall term, 1870, of the circuit court of Dallas county, the cause having heen removed to that court under an act of the legislature abolishing the city court, a motion was made as follows: “The defendant, J. Cooper Waddill, moves the court to set aside and vacate the former order of court reviving this suit against him as executor, and to quash the scire facias heretofore issued on which said order of-revival was made, on the following grounds,” &c. Signed “Jasper N. Haney, amicus curice, for motion.”
Prior to this time, there had been no appearance of this defendant, or of his testator, and none was then entered, except as above stated. The court' overruled the motion, and a judgment by default was rendered against the defendant as executor.
The manner of obtaining jurisdiction of the personal representative of a deceased defendant is to cite him to appear at the next term of the court and defend. — Eevised Code, § 2544. This citation, called a scire facias prior to the Code, and commonly so called,since, is perhaps not technically such. It must, however, be considered as a mesne process to be issued from the court, and to contain the essential qualities of a writ to be served on the party,
Defects which render a writ voidable only, must be pleaded in abatement. But when they are of such a character that the writ will not support a judgment, it is void. Of this latter class is the insufficient description of the court in which the defendant must appear, because what court is authorized to take action against one of whom it has not obtained jurisdiction.
In this case the citation contains a venue. It is signed and tested by one styling himself clerk, simply. It summons the party to “ appear at the next term of this court, to be held on the second Monday in July, 1869,” without any more particular designation of the court. There is an indorsement upon it of the words, “ city court of Selma, July term, 1869.” If the process was required to be entitled of any court, or if it was an impropriety for these words to be so indorsed after the service upon the party, the defective description of the court in the body of the citation, might be considered an amendable error, or one rendering the writ voidable merely.
It has been held by this court, that the statement in the summons, or writ, of an erroneous time or place of holding the court, did not affect the process, when it could be treated as surplusage. — Relfe v. Valentine, 45 Ala. R 286; Love v. McRae, 12 Ala. 444. In Nabors v. Nabors, (2 Por. 162,) an error in the time when it was returnable was considered to be available only by plea in abatement, because
In The State v. Allen, (33 Ala. 422,) an undertaking of bail was held to be void for uncertainty, because it required the accused to appear before the said justice, “ or some other justice of the peace,” without naming a place. The court remarked, in argument, that a bond requiring the party to appear at some named circuit court, or some other circuit court, would undoubtedly be void for uncertainty.
It is insisted, that as the appellant was bound to know when the terms of the city court-of Selma were to be held, and the time specified in the citation for its return corresponded with the commencement of a term of that court, the venue being right, he was sufficiently informed of the court in which he was to appear. The probate court holds a regular term on the second Monday of each month, and the clerk which its judge is authorized to employ has power to do all acts not judicial in their character. — Eev. Code, 792, 796, § 6. ,;
I have not found any authority tending to show that the people are presumed to know who are the clerks of the various courts. The courts themselves only hnow judicially their own officers; not those of equal or inferior jurisdiction. On the contrary, there is good reason and much indirect authority why they should not be held to have such knowledge. — Turner Williams v. The State, January term, 1872. The court erred in not setting aside the order reviving the suit against the, appellant and quashing the citation.
It is not error to revive the suit against the personal representative of the deceased defendant on the second day of -the term to which the citation is returnable, if it has been executed. There must be a motion to revive, which is granted by an order of revivor. This can not be made, or will not be operative, until the court has obtained
The judgment is reversed, and the cause remanded.
