May v. Long , 6 Ala. 107 ( 1844 )

GOLDTH WAITE, J.

The practico in these summary proceedings has been, to consider the notice as in the nature of a statement of the cause of action, whenever its merits were questioned on demurrer; and to permit it to be pleaded to, whenever the defendant demanded an issue to be tried by a jury. This practice is distinctly recognized in McMahon v. Kyle, [9 Porter, 507,] Bondurant v. Woods, [1 Ala. Rep. N. S. 548,] Hallett v. Lea, [3 ib. 28,] and, doubtless, has prevailed from a very early period, growing out of the necessity for on allegation by the plaintiff before any issue could be formed. By the act of demurring or pleading to the notice, it is made a part of the record, and must necessarily be looked into to ascertain whether the action of the court on it has been correct or otherwise. When the notice has thus assumed the character of the plaintiff’s allegation, and is denied by the defendant, or, indeed, admitted by a special plea, it must be considered as concluding the defendant, to the same extent as a declaration in an ordinary suit at common law. There are, however, a class of these motions, in which the jurisdiction of the court is necessary to be sustained by an act which does not enter into the liability of the defendant, and which is not necessary to be stated in the notice. We speak here of bank motions, when the certificate of the president is a necessary part of the record; and it is to this class that the remarks in Curry v. Bank of Mobile, [8 Porter, 300,] are peculiarly applicable.

The notice in the present case contains a precise allegation of every fact and circumstance necessary to invest the court with the jurisdiction of the motion under the statute. [Clay’s Digest, 531, § 3 & 4 ; 533, § 12.] Indeed it is not pretended the allegation is defective; but it is insisted, that the averments contained in the notice ought to have been carried into the judgment entry, and there affirmed, as appearing to the court. The course insisted on as proper, under the circumstances of this record, w’ould encumber it with two allegations precisely the same in effect, and would then have been verified, not only by the jury finding the issue for the plaintiff, but also by the court, in declaring the same facts were shown to it.

Here, then, is a verdict upon an issue, and no issue could have been found for the plaintiff on his allegations, which does not have the effect to conclude all the issuable facts alleged. Notwithstanding this, if thp facts, as alleged, did not .make out the jurisdiction of the court, it was competent for the defendant to show the defect, and have the advantage of it here. There may be expressions, and in some of our opinions upon cases of this description, which may have led the bar to an impression, that the jurisdiction of the court was necessary to be sustained by the judgment entry, when the intention was to speak of the record only. In the case of a judgment by default, it is the proper course to show the jurisdiction in that entry. [Smith v. Branch Bank at Mobile, January Term, 1843.] Where there is a verdict, the jurisdiction must be concluded from the record ; but when the facts stated in the notice, or suggestion of the plaintiff, are affirmed by the verdict, that will be sufficient in itself to sustain the jurisdiction; unless, as in bank motions, some other matter is essential to sustain the jurisdiction, such as the certificate of the president, or extrinsic and not issuable matter.

We may remark, that no question is here made, whether the personal representative of a co-surety is liable to be pursued by this summary remedy; nor is that point raised on the assignment of error. Therefore, we have not considered it.

From this view, it is apparent, there is nothing to reverse the judgment; and it is, therefore, affirmed.