Gary v. Wood , 4 Ala. 296 ( 1842 )

COLLIER, C. J.

1. The suggestion of the want of diligence on the part of the sheriff expressly asserts that the execution came to the hands of Mathias E. Gary, on the first day of April, 1841, and that he was then sheriff of Sumter county. In truth it alledges every fact with precision which was necessary to invest the Court with the summary jurisdiction provided by statute.

2. In respect to the second point made by the plaintiff in error, it is insisted that it is not enough that the suggestion be complete in its recitals and allegations, but the judgment itself must set out every fact necessary to authorize the procedure. A single remark in the opinion of the Court in Curry v. The Bank of Mobile, [8 Porter’s Rep. 372,] may favor this argument, but the subsequent case of Adams et al v. White, [2 Ala. Rep. 37,] shows that it cannot be sustained. In the latter case the proceeding was a failure to make the money on an execution, &c. and the judgment was by default. The judgment, after reciting the appearance of the plaintiff and the default of the defendant, states that, “ on motion and suggestion to the Court, that the money could have been made by due diligence thereupon came a jury, &c. who say they find for the plaintiff the sum of, &c. The Court say, “ If the sheriff had appeared and contested the allegations of the suggestion, the finding of the jury, under the authority of the case of Curry v. The Bank of Mobile, [8 Porter, 360,] might have been considered sufficient.”

In the case at bar, the record does not inform us what was the character of the issue on which the suggestion was tried; yet, in suits prosecuted in the usual mode, where the record does not impart information on this point, it has been repeatedly holden that it 'will be intended the issue was a mere denial of the complaint. By analogy, we must infer that the question tried by the jury was, whether the suggestion was true in fact. Taking this to be law, and the conclusion follows that the verdict affirms the truth of every material fact alledged in the suggestion. And issue being taken on the suggestion, it must be regarded as a [part of the record, and the facts which it discloses will be quite as effectual to sustain the judgment as if shown by the entry of the Court on its minutes.

3. The notice of the suggestion does not appear to have been given to any other person’than the sheriff himself, and though it was competent to have rendered a judgment against the sureties for the default of their principal, [Reid et al v. Jackson, 1 Ala. Rep. N. S. 207,] yet it must be intended that the recital in the judgment entry, that the defendant came by Ms attorney, as well as in Ms own -proper person, indicates the appearance of the sheriff only. In Catlin, Peeples & Co. v. Gilder’s ex’rs. [3 Ala. Rep. 536,] upon the margin of the judgment entry, the suit was stated against the defendants in their firm name; one of the defendants only had been served with process, who pleaded; the judgment recited that the parties came by their attornies, and the jury were empannelled to try the issue joined. The Court held that the reasonable inference was, that they only appeared who were parties to the issue tried. To the same effect is Puckett v. Pope, [3 Ala. Rep. 552.]

The defendant, against whom the judgment is rendered, is not mentioned by name, but as the sureties did not appear, it is clear'that they are not parties to it. If it could be regarded as a judgment against them it would be erroneous, for the omission to show by the record that it was proved to the satisfaction of the County Court, that they were the sureties of the sheriff. [McRae et al v. Colclough, 2 Porter’s Rep. 74.]

If an execution was issued on the judgment against the sheriff and his sureties, it would be entirely competent for the latter to obtain a supersedeas and quash it on motion,as the judgment would not warrant such an execution. But the sureties cannot join with their principal in the prosecution of a writ of error to revise a judgment to which they are not parties — and for this misjoinder the writ of error is dismissed.