Crawford v. Planters' & Merchants' Bank of Mobile , 6 Ala. 289 ( 1844 )

ORMOND, J.

When this cause was before this court at a previous term, [4 Ala. 313] the judgment was reversed and the cause remanded, because it appeared from the record as then presented, that a judgment which was afterwards set aside, was rendered against two of the defendants only, and without any continuance of the motion against the other two, a judgment was subsequently rendered against them also. The record now discloses, that the original judgment was against all four of the defendants, and there can be no doubt of the power of the court to amend the judgment entry, setting aside the first judgment, nunc pro tunc, so as to make it correspond with the facts as shown by the record, that the judgment was set aside as to all four of the defendants. Indeed, but for the imperfect condition of the record, from which this court was constrained to infer that the original judgment was against two of the defendants only, the cause would not have been reversed.

We do not consider it necessary to inquire, whether the act of the legislature, [Clay’s Dig. 341, § 154,] declaring that “all private acts of assembly may be given in evidence without being spe-daily pleaded,” merely authorises the act to be given in evidence, or whether the proper construction is not that the court will judicially notice them as other acts of the legislature, because we are of opinion that the act chartering the Planters’ and Merchants’ Bank, is a public statute.

A statute which relates to all the subjects of the Realm, is a public statute. [Bac. Ab. 374.] The charter of this bank secures to the people of the State the right to engage as a partner in the concern, by putting in two-fifths of the capital stock, with a corresponding power in the direction of the bank; it is a matter therefore, which concerns the public generally, and not the private corporators alone, and is therefore clearly a public law. The constitution of the State evidently contemplates that all banks subsequently to be chartered, should, if not wholly, at least to a great extent, be public institutions, in which all the people of the State should have an interest, and over which the legislature should exercise some control. Such being their nature, the acts of the legislature, calling them into existence, concern also the people of the State, and are therefore public acts, which the courts will judicially notice. [See Bank of Utica v. Smedes, 3 Cow. 684.]

If, however, it were a private act, its recognition in the act of 13th February, 1843, which is undoubtedly a public law, authorizes the courts to take judicial notice of it, though not plead, ed. [To this point, see Samuel v. Evans, 2 Term, 574.]

It is further insisted, that the act of 1843 continues the charter in existence only for the purpose of commencing new suits, and that all suits then in existence, must be at an end when the charter was declared forfeited. The act of the legislature, declaring the charter of tho bank forfeited, and providing the means of judicially ascertaining the fact, declares “that for the purposes of settlement the powers now granted to the said bank for maintaining suits, and the corporate name of the bank shall be continued, and may be employed by the commissioners aforesaid, &c.” A subsequent clause authorises suits against the bank. This act then continues the corporation in existence for one purpose, that of closing its affairs; to do which it has the power to maintain suits in its corporate name, and certainly the reason which induced {his enactment, applies with the same force to suits then in existence, as to those to be afterwards commenced. For the purpose of suing and being sued, the corporation has never ceased to exist; as the same act which provides for the resumption by the State of the franchises conferred by the charter, continues it in existence for this purpose ; this objection therefore cannot prevail.

But the judgment must be reversed, because it does not appear that the court had jurisdiction. To give the court jurisdiction to render a judgment in this summary mode, it should ■appear that the certificate of the president of the bank, or by the act of 1843, that of one of the commissioners, was produced, certifying that the debt was the property of the bank. This is indispensable, even when an issue is made up, as was done in this case, and which as in other cases, would ascertain the liability of the defendant for the debt. [Curry v. The Bank of Mobile, 8 Porter, 372.]

In Roberts v. The State Bank, [9 Porter, 317,] we held that the court would judicially take notice who was president of the State Bank, and would judicially know his signature. This decision is placed upon the ground that the president of the State bank is a public officer, elected by the legislature, and the bank the property of the public. The president of this bank is appointed by the stockholders — the commissioners by the stockholders and the governor jointly. We think it cannot be affirmed that either the president-of the bank or the commissioners, who are to close its affairs, are public officers — they are the mere agents of private individuals, in which the public has no direct or immediate interest — the State not having taken the stock, which by the charter it was authorized to take in the bank; the reason, therefore, which influenced the decision in Roberts v. The State Bank, fails in this case.

It does not appear from the judgment entry, that any certificate of the ownership of the debt by the bank, was produced, but, from the bill of exceptions it appears, that the certificate of F. C. Heard, as president of the bank, and Daniel M. Riggs, as commissioner, were produced and shown to the court; but it is not shown in any part of the record, that any proof whatever was made either of the official character of the persons making these certificates, or that their signatures were genuine. This, in our opinion, was necessary, to give the court jurisdiction, and it has always been held, that the record must show that the proof was made which confers the jurisdiction. What would be sufficient evidence of the official character of one assuming to act as president of the bank, or commissioner, we need not now determine, but as the question has been argued, it is proper to say, that it would not be necessary to prove that the certificate was made at the time it bears date; proof of the genuineness of the signature would be prima fade evidence of the contents of the certificate.

The remaining assignments of error are covered by the previous decisions of this court, but as the question just examined, is decisive of the case, it is not necessary to consider them.

Let the judgment be reversed, and the cause remanded.