Yonge v. Broxson , 23 Ala. 684 ( 1853 )

LIGON, J.

The exceptions taken to the proceedings in this case, may be classed under two heads : first, objections to the original writ; and second, objections to the action of the court in allowing the substitution, and rendering the judgment by default.

As to the writ it is urged, first, that it was not issued by the clerk of the court out of which it purports to come; secondly, that it is not returnable to the first day of any regular term ; thirdly, that it docs not name the place at which the court will be held ; and, fourthly, that it is not directed “ to any sheriff of the State of Alabama.”

As to the first of these objections, it is sufficiently answered by the face of tho writ itself, and the affidavit of Ciaxton attaohod to the copy proposed to be substituted. The former is subscribed with the namo of the clerk, and the latter establishes the fact that this name was subscribed to it by the affiant, who had authority to do so. He must be taken to have been a deputy of the clerk.

The second and third objections are also untenable. It is true, the writ is not, in so many words, returnable to the first day of any term of the court, but it reads “ before the next Circuit Court to be held for Coffee County.” When a process is made returnable to the next term of the court after its issue, it must be held to mean the first day of such term, and the term mentioned to be the first regular term <5f the court succeeding its date, if, as in this case, it was issued more than five days before the session of a regular term.

The law appoints the time when the several Circuit Courts in this State shall hold their sessions, as well as the places at which they must be held ; and requires that all writs of capias ad respondendum shall be returned into the clerk’s office of the court from which it issues, on the first day of tlio term to which it is returnable. It is not necessary that the day or Monday of the month, or even the month itself, when the courtis to be held, should appear by the writ; nor is it important that the town; village, or place at which the court holds its sessions should bo inserted in it. Suitors are presumed to know these things, without being advised of them by the process of the court. — Clay’s Dig. 334 §§122, 123 ; ib. 336 §§132, 183.

The fact that the writ is addressed “ to any lawful officer of Coffee Count3r,” and not “to any sheriff of the State of Alabama,” is not available on error, as it is at most only matter in abatement, of which the party did not seek to avail himself in the court below. The notice and motion for leave to substitute the writ are regular, and meet all the requirements of our previous decisions.—McClendon v. Jones, 8 Ala. 298. Indeed, no notice was necessary, as the case was in fieri when the original writ was destroyed.—Ganaway v. The State, at the present term.

It is, therefore, unnecessary to consider further the objection taken by the plaintiff in error to the service of the notice by the sheriff. From the time the process is served, until the final judgment, the parties are presumed to be in court, and need no further notice of the orders there taken in reference to the case.

It is further urged, that, if the notice and motion to substitute were regular, the motion was discontinued by the failure of the plaintiff to take any steps in relation to it at the Spring term, 1851, of the Circuit Court of Coffee County. This objection is not sustained by the record; for by this it appears, that at that term the motion to substitute was entered on the motion docket of the court, and granted; but the clerk failed to enter it on his minutes. It also appears that a declaration was filed at the same term. The motion docket is a book of the court required by law to be kept by the clerk, and the entries and proceedings appearing upon it as of a particular term may properly ho looked to, as showing the orders taken by the court, in relation to the case at that term, and to show that there was no discontinuance. They are, also, sufficient evidence of what was done at a previous term, to authorize the court to enter a judgment nunc pro tunc at a subsequent one, if they show that the court had ordered a particular judgment, which the clerk omitted to enter.

Our conclusion is, that the judgment of the Circuit Court is regular, and must he affirmed.