Ex parte North-east & South-west Ala. Railroad , 37 Ala. 679 ( 1861 )

R. W. WALKER, J.

By the 14th section of the act-“•to incorporate the North-east and South-west Alabama Railroad Company,” • i't is provided, that upon the failure of any stockholder to pay his calls- of stock, the corpora-., tion “ may move the circuit- court of the county in which the stockholder resides, for judgment at the time at which . such motion is made, twenty days’ notice being given him., of said motion.. The notice may be issued by the presi- . dent of the corporation,.and served by the sheriff, who shall - be entitled to one dollar therefor, to be taxed in tbe bill of. costs; and upon such judgment, execution shall issue as in, other cases.” — Acts 1853-4," p. 275.

[1.] Of the power of the legislature to control and modify, at its pleasure, the summary remedy here bestowed upon tbe corporation, to tbe same extent that it can regulate tbe remedies for the enforcement of contracts between private individuals, we entertain .no doubt. — Bank of Columbia v. Okely, 4 Wheat. 244-5 ; Howard v. Ky. & Lou., Ins. Co., 13 B. Monr. 285-6 ; Angell Corp. § 769.

[2.] Tbe question is, whether the legislature has exercised the power hero asserted. The court below decided that it -has, and held, that the remedy given by the 14th section of the act of incorporation, is so far affected by the act approved February-. 8,.Í8G1, commonly known as the “ stay-law,” that fhe corporation -is not entitled to have its motion heard at the term to. which the notice is returned, although the notice has been served- more than twenty days before the motion is made.

The 1st section of tbe act last referred to provides,, “ That hereafter, in the commencement of any suit in any of the courts of law. op equity in this State,. the court .to , which any suit, writ, summons,- complaint, or bill, may be made returnable, shall be. deemed and held as the return ■ term .of such suit, writ, summons, complaint, or bill, and the same shall stand for trial at the next succeeding regular term of such court appointed by law to be liolden after such; return term ; • and the parties in the law courts shall not be required to.plead at the first term, except that pleas, in abatement shall be filed as now required by law.” — Acts of Called Session of 1861, p„.3.

The language here employed is certainly as comprehensive as could be desired. The words of this section, stand- . ing by themselves, are broad enough to embrace a summary proceeding, by notice and motion,, in the circuit court. Such a proceeding is a suit in a court of law; and the words here used are, “ in the commencement of any suit in any of the courts of law or equity in this-State, the court to which any suit, writ, summons, complaint, or bill, may be made returnable,” &c. The use of all these terms clearly implies, that the statute was intended to apply to suits not begun by writ, summons, or complaint, as well as to those which are. In Alabama & Tennessee Rivers R. R. Co. v. Harris, (25 Ala. 232,) it vras held, that a proceeding. by notice and motion on the part of a railroad company, against a delinquent stockholder, is-a “a suit” within the meaning of section 2398 of the Code. So, in Ex parte Robbins, (29 Ala. 77,) it was declared that an action, commenced by original attachment, is within the provisions of section 2396 of the Code, though the words of that section, literally construed, seem applicable only to suits begun by summons and complaint. In Stanley v. Bank of Mobile, (23 Ala. 662,) it was held that, in a proceeding by-notice and motion, .the issuing of the notice is the commencement of the suit, and prevents the statute of limitations from creating a bar, although the motion for judgment is afterwards delayed. And the notice serves the double purpose of writ and declaration. — Jemison v. P. & M. Bank, 17 Ala. 754 ; Stanley v. Bank, supra; Griffin v. Bank, 6 Ala. 908 (910.)

But we are uot left alone to the words of the 1st section. “'The 5tli section provides, that “the provisions of this-act • •shall not be held to apply to suits of -any descriptions or _ judgments in any court against defaulting public officers, for failing to pay over money, or for any breach of the duties required of them bylaw.” It is plainly to be implied from this, that, bht for the -special exception here - made, summary proceedings by notice and motion,- against sheriffs and other public officers, would be subject to the provisions of this act. The object of the legislature was ‘ to reach all suits, except'lbose especially named in the 5th ■ section ; and suits in which-judgment is obtained on notice -■ and motion, aro as much ^within the intention-of -the law, ■ as those commenced in--the-usual mode.

■ [3.] The rule declared in our former decisions, in reference to proceedings--hypnotice and motion, is, that some action must be had- on the' notice at the time specified In it; or the law will presume .that the party has abandoned Chis intention of proceeding on it, and he cannot after-wards .move the court for judgment on such motion. — Broughton v. Bank, 6 Porter, 48; Armstrong v. Robinson, 2 Ala. 164; Gary v. Bank, 11 Ala. 771; Evans v. Bank, 12 Ala. 788. Under the act of February -8, 1861; the motion cannot, as we have seen, be.heard at the return term of the notice, against the objection of-the-defendant; but the -plaintiff can keep alive his-notice, by having it docketed, according to the rule adopted at this term, or by any action of the - court continuing its existence; and it will-then stand for --trial at the next succeeding regular term.

As the ruling of the circuit court was correct, we need not inquire whether there would have been a remedy by mandamus, if it had been erroneous.

- Motion, overruled.