Walker v. Bank of Alabama , 4 Stew. & P. 215 ( 1833 )

Taylor, J.

The first assignment of error, in this ■case, is a general one, and the third is not. sustained by the record—as the allegation, in the notice, that the plaintiffs below were the “ holders and owners,” of the bill of exchange sued on, is equivalent to alleging, that the bill was the property of the bank.

The second assignment, therefore, is the only one which will be considered : it is in these words—“The evidence, in the Court below, did not authorise the judgment there rendered.”

This was a summary proceeding, commenced by notice, and the judgment was rendered, upon motion by default, against the defendant below, (Walker,) without pleadings, and without a jury.

In such cases, it was determined by this Court, in the case of Logwood vs. The Huntsville Bank,^a that nothing will be presumed, or taken by intendment, against the defendant. Therefore, sufficient evidence, must appear to have been introduced before the Circuit Court, to authorise the judgment; and the record must show what that evidence was.

It is contended, by the plaintiff in error, that it is not shown, by the record, that any proof was offered, that Smith & Walker had accepted the bill.

The record states, that a bill of exchange was produced in Court, drawn by Joseph King, bearing- date the 14th June, 1829, on Smith & Walker, directing and requiring the said Smith & Walker, two hundred days after date, to pay to Ezra Hill or order, the sum of two thousand dollars, at the Bank of Mobile, for value received; which said bill of exchange .was indorsed by the said Ezra Hill, to William C. Coolidge, and by him to John Files, by him to J. B. Cook, and by him to the plaintiffs. It then proceeds to state the production of the certificate of the president of the Bank, that the bill was the property of the Bank; the protest of the bill for non-payment, and the notice to Walker of such non-payment.-— Thére is no intimation of proof that Smith & Walker had accepted the bill. Indeed the inference is irresistible, that there was no written acceptance on the paper itself; it is minutely described by date, amount, drawer, indorsers, &c., but nothing is said about an acceptor. It is true that proof of a verbal acceptance, or of a written one upon a distinct paper, would sustain the judgment; but it does not appear that any such, proof was offered.

It is insisted, however, for the defendants in error, that the judgment by default, is an admission of the cause of action. We think that no such effect can be produced by a judgment by default, when the proceedings are of this summary nature. It has heretofore been decided by this Court, in the case of Lyon vs. The Bank of Alabama, that the notice does not occupy the place of a declaration ; that it is principally in ¡ended to bring the defendant into Court.— Indeed it can not be considered as the declaration, because it is the act of toe plaintiff, performed out of Court — not governed by the rules which control the pleadings in a cause. The statute simply requires, that notice shall be given of the motion for a judgment, that the defendant may have an opportunity to defend; and the proceedings in Court are conducted by the parties, without any pleadings whatever. It follows of necessity, that the plaintiff must fully prove his cause of action, whether there be a judgment by default or not, to secure the defendant against future liabilities. Therefore, because there is no proof in the record that Smith & Walker accepted the bill, the judgment is reversed and the cause remanded.

a “Ala. R.23.