Baker v. Swift & Son , 87 Ala. 530 ( 1888 )

STONE, C. J.

This was a statutory action for the recovery of personal chattels in specie, a substitute, with additional powers, for the common-law action of detinue. The summons, which accompanied the complaint, was not signed by the clerk; but the indorsement upon it, stating that plaintiffs had made the necessary affidavit and given bond, and commanding the sheriff to seize the chattels, was signed by the clerk officially, and bears the same date as the summons. Under this order of seizure, the sheriff did take possession of the -chattels; and the defendants failing to give a replevin bond within five days, the plaintiffs gave the requisite bond, and took the property into possession. — Code of 1886, §§ 2717 el seq.

We agree with counsel that what purports to be extracts from the docket in the Circuit Court below is no part of the record, and can not be looked to by us. The docket is not a record, and what the transcript purports to set forth, as part of it, is but the unauthorized, unofficial statement of the clerk. We will treat this case as if that were stricken out.

This case remained on the docket of the Circuit Court for over two years, wffien a judgment by default was taken against the defendants, with a writ of inquiry, executed. No objection was taken in the court below, for the failure of the clerk to sign the summons, nor are we informed whether the copy-summons was signed or not. As we have said, the writ of seizure, which the law requires to be indorsed on the summons, was signed by the clerk officially, and bears the same date as the order of filing indorsed by the clerk. Code of 1886, § 2717. We think this record, in the absence of any objection raised in the court below, furnishes sufficient evidence that the summons -was issued by the clerk. Code of 1886, § 2652.

In support of the conclusion we have reached, we feel justified in referring to the fact that, under the process and order of seizure, the sheriff took from the possession of defendants the property sued for, including, among other things, one mule and one mare; and these were never restored to defendants. The defendants certainly had notice of the suit, and we hold, if they had ground of objection, they have waived it.—Lenoir v. Broadhead, 50 Ala. 58; Young v. Broxson, 23 Ala. 684. This case is distinguishable from Harrison v. Holley, 46 Ala. 84, in several particulars.

We have now noticed the only question assigned as error.

Affirmed.