Warwick v. Brooks , 70 Ala. 412 ( 1881 )

STONE, J.

The present was a proceeding under the statute, instituted by motion, to obtain a judgment against the sheriff and his sureties, for failing to return an execution issued from the (hrcuit Court of Perry county. The remedy invoked is summary, and to sustain a judgment thus obtained, the record must disclose every fact necessary to entitle the party to such remedy, and that it has been.pursued according to the statute.-2 Brick. Dig. 464, § 1. The defendants (appellants here] did not appear in the court below, and the cause proceeded to final judgment in their absence. In the absence of an issue joined, we have uniformly held that, unless the record affirmatively shows that every material step was taken to uphold the jurisdiction, a reversal is inevitable. Nothing is taken by intendment. The notice, copied in the transcript in this cause, can not be looked .to, or considered, unless it had been made a part of the record by a proper order of the court. It is not, unless so made, any part of the record of the cause.—Connoly v. A. & T. Railroad, 29 Ala. 373; Barclay v. Barclay, 42 Ala. 345 ; Arthur v. The State, 22 Ala. 61; Curry v. Bank, 8 Porter, 360; Reid v. Jackson, 1 Ala. 207; Brown v. Wheeler, 3 Ala. 287.

The judgment-entry in this cause contains inconsistent and repugnant recitals. It recites, “ This day comes the plaintiff by his attorney, * * * and the defendants not being represented in court;” and thereupon the clerk selected an attorney, practicing in the court, to preside at the trial, “ the presiding judge having been of counsel,” and therefore disqualified. Further on, the judgment-entry uses this language: “And issue being joined upon the motion of the plaintiff: for a judgment against the defendants, thereupon comes a jury,” &c. Ve find in the record no issue actually made up, and amid the inconsistent recitals noted above, we can not, in a summary proceeding like this, affirm that the defendant was represented, or had joined issue on the averments of the motion. Thus construed, the judgment-entry is fatally deficient in many particulars. There should have been a judgment by default taken; and then the judgment-entry should have shown that every material averment of the motion was proved.—Connoly v. Railroad, supra.

Reversed and remanded.