Boswell v. Morton , 20 Ala. 235 ( 1852 )

DARGAN, C. J.

Gustavus Boswell moved tbe Circuit Court of Eayette for judgment against James B. Morton to recover of bim tbe cost of a suit that bad been commenced by William Morton against said Boswoll, and which bad been decided against tbe plaintiff, William Morton. In tbe motion it is alleged that James B. Morton was tbe security for tbe costs of said suit; and on tbe trial, tbe plaintiff read in ev - dence, in support of tbe motion, tbe following endorsement on tbe back of tbe writ: “We acknowledge ourselves security, for tbe cost in this case,” which was signed, James B. Morton, M. D. Foster. He then produced tbe judgment, by which be was adjudged to recover bis cost, and also an execution issued thereon, against tbe plaintiff in tbe original suit, which bad been returned nulla lona. Tbe court refused tbe motion, and tbe cause is brought here by writ of error.

As tbe motion was refused, and tbe record does not show tbe special ground of refusal, we must consider tbe whole ease as made by tbe proof; for if there could be found one sufficient reason why tbe judgment should not have been rendered, then we cannot reverse. It is very clear that tbe contract, by which the defendant became bound for the cost, is not one which is joint and several by the common law; and it is equally clear that it is not made so by our statute, for it is neither a bond, covenant, bill, promissory note, nor a judgment, and these are the only contracts which, being joint by the common law, are made joint and several by our statute. Clay’s Dig. 328. The contract is therefore joint only, and not joint and several; and the first question is, can this summary proceeding be allowed on a joint contract against one of the joint contracting parties, without showing a reason why the plaintiff does not proceed against both. If suit had been brought on this contract in the usual manner, the defendant could have availed himself of the defence of the non-joinder of his co-security by plea in abatement alone; and we think this defence should have been interposed in some manner as a defence, although the proceeding is by motion. Indeed, if we hold that the motion could be sustained against one by showing that no judgment could be rendered against the other, we then admit the jurisdiction of the court to proceed against one only; and if the court has jurisdiction to proceed, in this summary manner, but there is a defence which will abate or quash the motion, it should have been made by the defendant. He was present in court, and made no objection, so far as we can discover, because of the non-joinder of Foster; and therefore we must consider that none could have been made; or if it could, that it was waived by the defendant.

The next objection to the motion is, that it does not specify the amount of cost sought to be recovered; but we think this is unnecessary. It is true that the judgment, when rendered against a security for cost, must show the amount. See Martin v. Avery, 8 Ala. 430; Barton v. McKinny, 3 Stew. & Por. 274; but the motion itself may be made even before the cost is taxed, and is sufficiently certain by showing that it is for cost, without setting out the amount or the items of cost. It is however contended, that the evidence in the court below did not show the amount of cost. But it appeared that an execution for the cost had been issued against the plaintiff in the original suit, which had been returned nulla bona; and we know that it is the duty of the clerk to tax the cost, and tbe execution must show tbe amount. This we apprehend was done in tbis case; indeed, we could.draw no other inference or conclusion, unless tbe record contained something to repel such an inference.

It is true, that no inference can be drawn in support of tbe jurisdiction of tbe court, when proceeding in tbis summary manner; but when the question is merely one of evidence as to tbe amount of tbe plaintiff’s demand, we must weigh it, and draw all just inferences from it, in tbe same manner that we would bad tbe suit been commenced by ordinary writ.

Tbe authorities to which we have referred show, that tbe form of tbe contract by which tbe security binds himself to pay tbe cost is immaterial. Upon tbe whole, we can see no good reason why tbe motion was not granted; and tbe judgment must be reversed and tbe causo remanded.