Cowert v. McCorkle , 113 Ala. 662 ( 1896 )

The appeal in this case is prosecuted from an order of the circuit court condemning certain lands for the payment of a judgment rendered before a justice of the peace. There is no bill of exceptions in the record. The order of judgment condemning the lands is not set out in the abstract; but the omission is noted in the counter abstract, with references to the pages of the transcript.

Upon examination, this court finds the order of condemnation to be in regular form and sufficient. The abstract nowhere sets out the judgment of the justice of the peace against the defendant. It is objected that the recitals of the judgment before the justice of the peace fail to show that there was jurisdiction of the defendant. It is decided that this court, on appeal, can not presume that the judgment is defective in the matter complained of, in the absence of the judgment itself, and it is further declared that ‘ ‘while we determine the question presented for revision from the abstract alone, it may not be amiss to state that a reference to the record discloses the fact that the judgment itself is free from the imperfection insisted upon.”

It was insisted that publication of notice to the defendant, who was a non-resident, was insufficient. It is decided that if this were true and admissible to contradict the recitals of the judgment, it is matter of evidence and should be presented by bill of exceptions. The judgment is affirmed.

Opinion by

Coleman, J.