Hunt v. State , 63 Ala. 196 ( 1879 )

STONE, J.

The record in the present case shows but one scire facias issued, which was returned served on all the defendants except John Little; as to him, it was returned “mot found.” The judgment was made final against all the defendants. To authorize a judgment final against any party on forfeited recognizance, it is necessary that the scire facias be returned executed, or that there be two returns of “not found.” This latter is declared to be equivalent to personal service. — Code of 1876, § 4866.

If there were no other error in this record, we would amend the judgment-entry by discontinuing the suit as to John Little, not served, and let it remain as a judgment final against the parties served. — Savage v. Walshe, 26 Ala. 619; McDowell v. Mitchum, 37 Ala. 417; English v. Brown, 9 Ala. 504. The scire facias, however, and the final judgment, are, each, imperfect. The language of the scire facias is, “unless the said John Little appear at the next term of this court, and show good and sufficient cause why the judgment should not be made absolute.” The statute allows each of the defendants against whom a judgment nisi is rendered, to show cause why the judgment should not be made absolute. Code, § 4863. The scire facias should be so framed. True, it follows and copies the judgment nisi; but that can be amended, nunc pro tunc, in the court below, so as to allow each and all of the defendants to appear and show cause. The final judgment, to be formal, should recite that the defendants failed to appear, to show cause, or that the cause shown by them was adjudged insufficient. — Code of 1876, § 4876.

There is nothing in the argument, that the record fails to show any action was taken in the court below for one or two terms after the judgment nisi was rendered. There may have been a failure to hold those terms of the court, or the cause may not have been reached. This is a civil cause’ and such causes at least are not discontinued by an unexplained failure of the court 'to take action for one or more terms. — Ex parte Remson, 31 Ala. 270.

Beversed and remanded.