Pomeroy v. State , 40 Ala. 63 ( 1866 )

A. J. WALKER, C. J.

We can not ascertain that there was error in overruling the plea of nul tid record. We understand the assertion that the plea was overruled to mean, that the issue upon it was tried, and decided adversely to the defendant. The' evidence upon which this decision was made is not presented to us by bill of exceptions, and we therefore are unable to revise it.

[2.] The demurer did not state any specific objection to the scire facias, and, therefore, was properly overruled, without regard to the merits or demerits of the scire facias. Helvenstein v. Higgason, 35 Ala. 259.

[3.] The sufficiency of the sciref acias is to be determined from a point of view altogether different from that which would be adopted, if there had been a demurrer in such form as to demand consideration. The question arising first on error, the scire facias must be sustained, if it contain a substantial cause of action.—Code, § 2405. In ascertaining whether a pleading contains a substantial cause of action, we are to abstain from those presumptions against the pleader, when doubtful and ambiguous allegations are made, which are indulged on demurrer. Regarding the judgment nisi, which is copied into the scire facias, in the light of this principle, we hold that it contains a substantial cause of action. The most serious objection urged before us is, that the witness is not shown to have been subpoenaed, so as to have been bound to attend at the term when the forfeiture was taken. It appears very clearly that he was subpoenaed as a witness; that the subpoena was executed before the forfeiture, and that the subpoena was issued in the case of The State v. Smith, stated in the margin, to which the entries on the minutes must be referred. In the absence of a demurrer, making the objection in the court below, we will not presume, that the case of The State v. Smith was a civil action, but, on the contrary, we will presume it was a case on an indictment; and this being presumed, we must hold that the witness was under the statute bound to attend from day to day, and term to term, until the case was disposed of.—Code, § 3565. This distinguishes this case from Emanuel v. Ketchum, 21 Ala. 257. The judgment here was for the use of the county. This very clearly indicates that the case of The State v. Smith was a criminal cause, for it is in cases of that character that such judgments are rendered.—Code, § 3619. The judgment is affirmed.