Manning v. Kohn , 44 Ala. 343 ( 1870 )

B. F. SAFFOLD, J.-

This suit was instituted in the city court of Montgomery, on a bill of exchange made ins 1861. The summons was issued February 4th, 1867, executed February 7th, 1867, and returned to a term of the court commenced February 11th, 1867. The judgment was rendered March 28th, 1868, at a term which commenced on the 10th February, 1868, and was by default.

The appellant objects that a period of at least twelve months did not intervene between the return and judgment terms, as required by law.

At the time this suit was begun, an act of the legislature to regulate judicial proceedings was in operation, which required that the first term of the court after the commencement of the action should be deemed the return term, only; the second term, an appearance and pleading term, and the action should not be tried before the term next after the appearance term thereof. — Act of February 20th, 1866. By an amendment to the 8th section of this act, approved January 18th, 1867, if the suit was in a city court, where terms are held oftener than twice in each year, a space of at least twelve months must intervene between the return and judgment terms. — Acts, 1866-7, p. 176. By an act, approved December 7th, 1866, three terms of the city court of Montgomery, in each year, are required to be held, commencing on the second Monday in February, and the first Monday in June and October.

The constitution requires the circuit court to be held twice a year in each county, and the times appointed by law are certain Mondays of months, which divide the year as nearly as practicable, so as to make semi-annual terms. The interval between the commencement of the return and judgment terms in the circuit court, under the law of February 20th, 1866, was about twelve months. It could not be exactly twelve calendar months, because the court commencing on a given Monday in a month would generally begin on a different day of the month, thereby increasing or lengthening the interval a'little. Did the legislature, in making a special provision, that in city courts when terms are held oftener than twice in a year, a space of twelve months should intervene between the return and judgment term, mean to attach a significance to the length of time requisite to obtain a judgment in those courts different from that intended in the circuit courts ? Without this provision, judgments could have been obtained in the city court several months sooner than in the circuit courts, under the same law, and a discrimination, without reason, between debtors would have been effected. The construction of the provision contended for by the appellant would vary the time of obtaining judgment in the city courts from twelve to eighteen months, according to the day of the month on which the Monday appointed for the commencement of the term should fall. We think the provision was intended to make equal the time in both courts, and that the judgment term was the next annual term after the return term; that the period between the second Monday in February, 1867, and the second Monday in February, 1868, they being the legally appointed times for the holding of the winter terms of the city court of Montgomery in each year, constituted the twelve months required by the statute.

The acceptor of a bill of exchange is in general not liable for damages. — Hanrick v. Farmer's Bank of Chattahoochee, 8 Port. 539.

A mere clerical error in the amount of the recovery, this court will correct at the cost of the appellant. But in this case the complaint claims damages, and the judgment is for the demand. It is manifest from the record that five per cent, damages has been included in the judgment. For this error the judgment is reversed, and a judgment for the proper amount will be rendered in this court. — Rev. Code, 3502. The appellee will pay the cost of the appeal.