Williamson & Daniel v. The Branch Bank at Montgomery, 3 Ala. 504

ORMOND, J. It has been repeatedly held, that in cases of this

summary character, the notice is no part of the voebrd, unless made so, by reference to it in the judgment of the Court, or embodied iii the record by bill of exceptions. The notice, when produced to the Court, is evidence merely, and all that is necessary, is that the judgmént should'shbw that such evidence was produced. That this is the law’, is conclusively shewn, by the'cases’'cited’by the defendants counsel. This is a sufficient answer to all the assignments of error which question the sufficiency of the notice.

It is however objected, that the record does not show that 'notice was served' on ihe sheriff, or that a notice issued to him. The act' of 9th January, 1841, in substance declares, that when a notice shall issue against any sheriff ánd his sureties.in office, judgment’ shall be recovered of such of the parties as have been served with notice. Previous to the passage of this law, no judgment could be .obtained, against a surety,.by motion in this class of cases until the principal was notified.' Orr v. Duval, 1 Ala. Rep. 262.

This act has changed the jaw,”so.as to authorised judgment against “such of the parties’ as service is effected on.” There was then no necessity to give the sheriff notice, and even if it were conceded that since the passage of the act of 1841, a notice must-still issue against the sheriff, a point not necessary now to be decided, it was not necessary that such notice should .appear,by the record.

The record shows that a motion was made for judgment, against'the plaintiffs in error, as the sureties of Hill, the sheriff of Wilcox, for the failure of Hill to pay over a sum of .money collected by him on, an execution ;.-.the execution, its amount, time of reception of and making the money, being all particularly described, and it appearing to the satisfaction of the Court, that said defendants have had one day’s notice of this motion; thereupon came a jury, &c.

It is very clear, that this shows that the plaintiffs in error, w.ere notified: was it necessary that the judgment of the Court' should shew that á notice had issued to the sheriff.' ’ We are of opinion that it was hot.' It was only necessary for the .record to show, that those’against whom the motion was made, had received notice of the intended motion, and if in the opinion of the defendants, it did not authorise a judgment, they should have appeared and contested it.

Nothing more need be shown than, was necessary to give the Court jurisdiction, and as no notice had been served on the sheriff, the Court had no jurisdiction to render a judgment against him. After the judgment was rendered, it appears the defendants appeared, and on a motion in arrest of judgment, desired to introduce, the notice, and by showing its insufficiency, arrest the judgment. The Court very properly refused to permit this to be done. A motion in arrest of judgment must be for matter appearing of record. A judgment Kifever reversed for extrinsic matter not appearing on the record itself.

Tisdd’s Practice, 825. There is less reason for looking beyond the record, in these

summary judgments than in ordinary cases, because here nothing is presumed, but every thing necessary to .give the Court the

summary jurisdiction must appear. We are of opinion, that the recital in the judgment of the notice is sufficient, and that the facts found by the jury.auth.or-ised the rendition of judgment against the plaintiffs in error. The judgment of the Court below is therefore affirmed.