Emanuel v. Ketchum , 21 Ala. 257 ( 1852 )

PHELAN, J.

— In scire facias the plaintiff may treat the sci. fa. as a writ simply, and declare upon it, or he may make the writ stand in the place of both writ and declaration. But if this be done, the writ must contain such averments as would be necessary to make a declaration good. 2 Dunlap, Scire Eacias. Such is the rule at common law, and there is nothing in our statute respecting judgments nisi and scire facias on forfeited bonds and recognizances, which at all affects the rule, in the case of scire facias against a defaulting witness in a civil case.

In sci. fa. against bail, the bail bond must be set out substantially, or in hcec verba, and if neither is done, it will be error; and this, too, in a case where the defendant appeared and pleaded, not noticing the defect in the sci. fa. by demurrer or otherwise. Toulmin v. Bennett, 3 S. & P., 220.

Upon the same principle, it is necessary that a sci. fa. against a defaulting witness should set out the subpcena, either by copy or in substance, and. aver tbat it was served. This is not done in the present case. The writ of sci. fa. is nothing more than a copy of the judgment nisi, which recites, that it appeared to the satisfaction of the court “ that J. Emanuel had been duly summoned, by subpoena, as a witness on the part of the plaintiff, and being this day called to come into court and give testimony, came not, but made default. It is therefore considered,” &c.

The sci. fa. is wholly wanting in an averment showing that the witness was bound to appear at that term on that day, or when. This was a material averment, for the want of which, allowing the greatest indulgence to this proceeding, the sci fa. must be pronounced defective.

If there is no declaration, or, what is the same thing, if the declaration is fatally defective for the want of an indispensable averment, the defendant may demur, move in arrest of judgment, or assign error.

When there has been a verdict upon issue joined, it has been held, that we would presume there was a declaration, and that it had been lost from the record. It has been also held, that when the judgment was by default, and there is no declaration, or one fatally defective, the court’ will reverse. Neither of these decisions covers precisely the present case. Here is a judgment by nil elicit: “came the parties, by their attorneys, and the defendant said nothing in bar of plaintiff’s motion,” and there is no declaration, or else a defective one, just as we may hold the sci. fa. to be the one thing or the other. A judgment by nil (Licit does nothing more than admit that the party is properly brought into court. It cannot cure a defective declaration. Randolph v. Cook et al., 2 Por., 286. We are compelled to hold, that this appearance is no waiver, either of the defects of a declaration or of the want of a declaration. See 15 Ala., 841; 5 ib., 674.

The judgment below is reversed, and the cause remanded.