Cowart v. Harrod , 12 Ala. 265 ( 1847 )

ORMOND, J.

In our opinion, the answer was wholly insufficient, and the chancellor correctly refused to permit it to be filed under the order, that the defendant might purge the contempt, by filing a full and complete answer.

■The defendant, under such circumstances, could not claim as a matter of right to amend the answer. Indeed, the answer being rejected, there was nothing to amend, but the application should have been for leave to file an answer. So far as we can judge from the record, neither this, or a motion to amend, was made to the chancellor.

The objection, that the publication, made .pursuant to the order of the chancellor, did not sufficiently state the facts and objects of the bill, cannot be raised for the first time in this court. The record states, that a copy of the order of publication, and a brief of the bill, was posted upon the courthouse door, and published in a newspaper designated in the order, pursuant to the order, and if the abstract or brief of the bill, was not sufficient to apprize the non-resident of the contents of the bill, objection should have been made to it for insufficiency. We cannot assume that it was not sufficient, and it was not necessary that the chancellor should cause the evidence of the fact to be embodied in his decree, or spread upon the record.

The act of 1841 authorizes a decree to be made against a resident defendant, sérved with process, who fails or refuses to answer. [Clay’s Dig. 354, § 58.]

There is no objection to the decree as rendered, requiring the complainants' to execute a bond, and suspending the execution of the decree, until such bond is executed. The literal terms of the act, do, it is true, require the complainant to execute a bond, before he obtains the decree; but this cannot be literally construed, as the condition of the bond must recite the decree. It follows necessarily, that the meaning of the act, is, the complainant should give bond before he is allowed to ,have the benefit of the decree; and if he should attempt to enforce the decree, without executing the bond, on application to the chancellor' it would be superceded.

We can perceive no error in the record. Decree affirmed.