Durden v. State , 32 Ala. 579 ( 1858 )

STONE, J.

The right to proceed in this case to a final judgment, by taking a judgment nisi, and by seire facias, is purely statutory, being conferred by section 3492 of the Code. To justify a judgment against a defaulting witness, wbo was summoned to give evidence before the grand jury, the record must affirmatively show a substantial compliance with the statute. — Connolly v. Ala. and Tenn. Rivers R. R. Co., 29 Ala. R. 373, and authorities cited.

The scire facias in this case does not contain enough to justify the judgment rendered. If other facts existed, which make out the regularity of the proceeding, they should have been set forth in a complaint, or declaration. Emanuel v. Ketchum, 21 Ala. 257.

The judgment of the circuit court is reversed, and the cause remanded.