Chandler v. Reid , 114 Ala. 390 ( 1896 )

McCLELLAN, J. —

This is a motion by Reid, under section 3101 of the Code, prosecuted against the sureties on the bond of a deceased sheriff. The sureties had notice of the motion, but failed to appear, and judgment by default, with leave to execute a writ of inquiry, was entered against them. This was proper; but the judgment entry should have shown that every material averment of the motion was proved. — Connoly v. A. & T. R. R. R. Co., 29 Ala. 573 ; Warwick v. Brooks, 70 Ala. 412. That the money was collected upon an execution, and that the officer failed to pay it over on demand of the plaintiff, his agent or attorney, were material facts averred, and necessary to be averred in the present motion. The judgment, however, does not show that either of these averments were proved ; and it cannot, therefore, be supported.

The record is further lacking, in necessary support of the judgment in that it fails to show that, proof was made that the parties notified of the motion, and against whom the judgment was rendered, were sureties of the sheriff.— Caldwell v. Guinn, 54 Ala. 64; Dane v. McArthur, 57 Ala. 456.

This remedy is given to the plaintiff in execution, whether he was the plaintiff in the action or not. The suggestion that the movant here was the defendant in the action, and for that reason is not entitled to a judgment under section 3101 of the Code, is untenable.

The parties having been brought in by notice of the motion, the case was not discontinued by reason of the fact that the motion was not heard until a term of the court succeeding that during or before which the notice was given.

Reversed and remanded.