Brown, et al. v. Wheeler, 3 Ala. 287

GOLDTHWAITE, J. We presume this suit was commenced with a view to the

summary remedy given by the act of 1821.

This act provides that “ in all cases where judgment shall- be entered up in any Court of record, or by-any justice of the peace, against any person or persons as security or securities, their executors or administrators, upon any note, bill, bond or obligation, and in all cases where execution shall be awarded by or issued from any of the Courts of record, or by any justice of the peace, against any person or persons as security or securities, his, her or their heirs, executors, or administrators, upon any bond, obligation or recognizance, and the amount of such judgment or obligation, or any part thereof, hath been paid or discharged by such security or securities, his, her or their heirs, executors or administrators, it shall be lawful for such security or securities, his, her or their heirs, executors or administrators, to obtain judgment by motion, against such principal obligor or obligors, recognizor or recog-nizors,,his, her or their heirs, executors or administrators, in any Court, or before any justice of the peace, where such judgment may have been entered up", and execution awarded against such security or securities, his, her or their heirs, executors or administrators, for the full amount which shall have been paid, with interest thereon, from 'the time the same shall have been paid and satisfied, until such judgment be discharged.” Aikin’s Digest, 384, § 3.

Although this enactment does not expressly require that notice of the motion should be given to the defendant, we think it would be most unreasonable to suppose that a mere ex parte proceeding was intended. We have, heretofore, considered notice as essential to the validity of judgments, under statutes similar in principle. Reed, et al. v. Jackson, 1 Ala. Rep.N. S. 207; Kirkmans v. Hawkins. 1 Porter, 22. The repeated decisions which have been made in this Court in cases of

summary proceedings, by banks and against sheriffs, leave but small space for farther adjudication by us, on any of the many statutes by which a like remedy is given, and we cannot but think that a reference to some few of those decisions, would effectually prevent any error from intervening. In Curry v. The Bank of Mobile, 8 Porter, 372, we say that, “ in cases of this

summary character, the judgment, whether by default or otherwise, must show, affirmatively, every fact necessary to give the Court this

summary jurisdiction. In judgments by default, the liability of the defendant must also be shown. When an issue is made up, the verdict will ascertain the defendant’s •liability, as in other cases of suits commenced in the ordinary mode, and it is [in the case of an issue tried] unnecessary to encumber the record, either with the proof or fact of notice, or of those facts which constitute the liability for the debt.” In Bondurant v. Wood and Adams, 1 Ala. Rep. N.

S. 542, we considered the submission of a cause to the decision of the Court upon a statement of facts, as equivalent to an issue, for the purpose of inferring that the parties were regularly before the Court, either having had, or waiving, notice. No such implication arises from the fact stated in this record, that the parties came by their attornies. Notice of the motion was necessary to authorise the

summary jurisdiction exercised by the Court, and as this is not shewn, the judgment cannot be supported. 2. But independent of this, the liability of the defendants does not appear; there is nothing to connect the bond with the execution, or which shows the rendition of any judgment on the bond to warrant the execution. 3. With respect to the interest, the judgment is also defective, because no fact is stated from which the time of payment can be inferred. It is also deserving of consideration by the plaintiffi whether any

summary proceeding can be had by the' security against his principal, on a bond for a writ of error to the Supreme Court, inasmuch as the statute directs the motion to be made in the Court where the judgment was rendered. We will likewise take this occasion to remark, that the case of Clements, et al. v. The Branch Bank, 1 Ala. Rep. N. S. 50, points out with sufficient precision, the form of proceeding, applicable to most, if not to all, of the statutes which give

summary remedies by motion. Let the judgment be reversed, and the casé remanded.