Brown v. Little , 9 Ala. 416 ( 1846 )

GOLDTHWAITE, J.

The practice in the English courts with relation to warrants of attorney, is somewhat different from that which prevails with us. There, writs of er-" ror upon judgments entered by warrant, are never heard of, but the courts control their abuse, and correct irregularities in the proceedings by motion. [2 Chitty’s G. P. 333.] As a preliminary to allowing judgments of this nature to be entered up, the courts require, in general, the affidavit of the subscribing witness to the execution of the warrant; and also, an affidavit that the debt continues due. [3 Ib. 671.] With us, the mode is to apply directly to the court, to render the judgment, upon producing and proving to the court a warrant authorizing the particular judgment which is asked. In Hodges v. Ashurst, 2 Ala. Rep. 301, and Bissell v. Carville, 6 Ib. 503, questions arose as to the sufficiency of the judgment entries, and we held, it must appear from the recitals that the authority was verified to the court, and that it was sufficient to warrant the particular judgment given, although it is not essential to set out the warrant, or its verification, in terms in the entry. In the present case, it is said the writing obligatory was exhibited to the court, authorizing Little, his attorney, executors, administrators, or assigns, to take a judgment by confession, for the amount of a promissory note therein specified, but it does not appear that the warrant was proved, as well as exhibited, or that the note described in the warrant was produced or proved to the court. In addition to these defects, no evidence whatever was exhibited to the court, that the plaintiff was the executrix of Little. It is true, if the confession had been entered by an attorney, appearing for the defendant by virtue of this warrant, we might not be constrained to look beyond the appearance. [Hill v. Lambert, Minor, 91.] But the practice is otherwise, when the party undertakes himself to act under the power.

■ For these defects in the entry, the judgment must be reversed and remanded.