Stephens, et al. v. Womack, 3 Ala. 738

ORMOND, J. In the transcript of the record sent to this Court, a paper purporting to be a notice, is sent up by the clerk, but not being referred to in the judgment, it cannot be considered as a part of the record : see Bates vs. The Planters’ Bank, 8 Porter, 99, and subsequent cases: the assignments of error, therefore, founded on the notice must be disregarded. This is a proceeding by the principal sheriff, against his deputy, a judgment having previously been obtained by the plaintiff in execution against the former, fur the default of the latter. It is founded on a statute to be found in Aik.

Dig. 389 § 11, whenever judgment shall be rendered by any Court of this State, against any sheriff for any failure, neglect of duty, or misconduct in office, and it shall appear to the satisfaction of' the Court, that such failure, 'neglect of duty, or misconduct in office, is the failure, neglect, or misconduct of his deputy, it shall be the duly of the Court, on motion of the, sheriff, to render judgment against such deputy and securities in favor of the principal sheriff for the whole amount of the judgment and costs rendered by the Court against such principal sheriff, by reason of such failure neglect of duty, or misconduct of said deputy, for which execution may issue as in other cases: Provided, that the deputy or his security or securities shall have one days notice of the pendency of the proceedings against the principal sheriff.” To enable the Sheriff to recover of his deputyunder this act,nothing more is necessary than to prove that the deputy, or his surety had one day’s' notice of the proceeding commenced against him for the default of the deputy — that a judgment was obtained against him for such default and its amount — that the person he seeks to charge was' his deputy, and that a certain person was his surety.

As this judgment is a mere consequence of the judgment previously rendered against the principal sheriff, the liability of the principal sheriff to the plaintiff in execution, for the default of the deputy, need not be shown; nor is it necessary that the record should show any notice to the deputy or his sureties, of the intended motion by the principal sheriff against his deputy and sureties.

It is sufficient, if either the deputy or his sureties have one day’s notice of the motion against the principal sheriff, and if such notice is given, immediately on the rendition of judgment against the principal sheriff a judgment may be rendered in his favor against the- deputy and his sureties, who caused the default- Although this record contains a great deal of superfluous matter, it does not show those facts on which alone the liability of the plaintiffs in error were to accrue.

It does not appear from the record that the plaintiffs inerror had notice of the pending motion against the principal sheriff— nor does it appear that a judgment was rendered against the principal sheriff for the default of the deputy or its amount.'— Some of these facts are indistinctly stated in the recital of the motion made against the plaintiffs in error, but it does not appear from the record, that the facts necessary to create the liability to this

summary proceeding were proved; and from the earliest period of the history of this court down to the present day, it has been heldthat thejudgment, whether by defaultor otherwise, must shew affirmatively every fact necessary to give the Court the

summary jurisdiction. Where as, in this case, the judgment is by default: those facts which constitute the defendant’s liability, must be also shewn. If thejudgmeht.be rendered on a verdict founded on an issue between the parties, the facts necessary to constitute the liability of the defendant for the debt, will be presumed to have been in proof before the jury, as in other cases, where suit is brought in the ordinary mode. — -8 Porter, 372. For the reasons given, the judgment must be reversed, and the, cause remanded.