Warwick v. Brooks , 67 Ala. 252 ( 1880 )

SOMERYILLE, J.

— This is a summary motion against the sheriff and his sureties for failing to return an execution within the time required by law. The Circuit Court rendered judgment final by default, on motion of plaintiff, without the intervention of a jury. The assignment of error based on this action of the court must be sustained. The motion is not an “action founded on any instrument of writing ascertaining the plaintiff’s demand,” within the meaning of section 3022 of the Code. There should have been evidence introduced to establish the truth of the statements, showing the liability of the defendants for the alleged neglect of duty. The issue in dispute could only be determined by the verdict of a jury, and was improperly adjudged by the court. — Porter v. Burleson, 38 Ala. 343; Patterson v. Blakeney, 33 Ala. 338; Byrnes v. Haynes, Minor. 286; 2 Brick. Dig., p. 135; § 61, et seq.

The judgment of the Circuit Court is reversed, and the cause is remanded.