Rich v. Thornton , 69 Ala. 473 ( 1881 )

BRICKELL, O. J.'

The assignments of error are numerous, but pursuing the practice of frequent observance in this court, we shall notice only those insisted upon in the argument of appellants’ counsel.

The power of a court of record over its judgments during the term at which they are rendered, is very large, if not unlimited It rests within the sound discretion of the court to set them aside, when satisfied that injustice has been done, or that they have been inadvertently or improvideutly rendered. — Freeman on Judg. § 90. Besting in the discretion of the court to set aside during the term the judgment dissolving the attachment and dismissing the suit, it was not irregular to act without'notice to the defendants. The want of notice, it can not be assumed, was of prejudice to them, as the court could have set aside the judgment despite any objections they could have urged.- — Smith v. Robinson, 11 Ala. 270.

If an attachment is issued upon a cause of action for which the issue of the process is not authorized by law, the mode of reaching the irregularity is by a rule on the plaintiff to show cause why the attachment should not be dissolved. — Brown v. Coats, 56 Ala. 439; Dryer v. Abercrombie, 57 Ala. 497. On the hearing of the rule the court should receive evidence in support, or for the discharge of the rule — evidence showing the real nature and character of the demand sought to be enforced by the process. The bill of exceptions recites, that the defendant, to support the motion to dissolve, offered to introduce evidence, which the court refused to receive. The evidence, its nature or character, the facts it tended to prove or disprove, is not stated. Whether it was relevant or irrelevant, primary or secondary, is not shown. The party excepting to the rulings of a primary court, must show by his bill of exceptions, affirmatively, error in the rulings of injury to him. An exception to the rejection of evidence can not be sustained, unless it is shown that the evidence was legal and relevant. If that be not shown, the presumption will be made, if necessary to support the judgment, that it was rejected because illegal, or irrelevant and in consequence illegal.

If there be defects in the affidavit, for which the attachment could be abated, the refusal of the Circuit Court to entertain the motion to quash because of them, is not revisable on error. 1 Brick. Dig. 164, § 153. If there be a variance between the affidavit and writ of attachment, the court was not bound to entertain a motion to quash, based on that ground. Yery properly it could have compelled the defendant to resort to a plea in abatement.

The execution of the instrument in writing on which the suit is founded, not having been denied by verified plea; it was properly admitted in evidence, without calling or accounting for the absence of the subscribing witness. In all actions founded on written instruments, if execution is not denied by verified plea, the statute (Code of 1876, § 3036,) declares, they “must be received in evidence, without proof of the execution.” The uniform construction the statute has received is, that in the absence of a verified plea, the fact of execution is not in issue; it is admitted of record by the defendant — Wimberly v. Dallas, 52 Ala. 196.

Let the judgment be affirmed.