Smith v. Branch Bank at Mobile

ORMOND, J. It appears from the objections taken to judgments of this character, that our decisions on this class of cases, [28] are but imperfectly understood, it may therefore, not be improper that we should again state the result of the cases to be found in our books. When the judgment rendered on motion is by default, it must appear by the judgment of the Court, that the defendant had the notice which the law requires, and that the facts were proved which gives the Court jurisdiction of the case, and shows the liability of the defendant for the debt, or penalty, sought to be enforced. If the defendant appear, it will be evidence of notice; and if an issue is made up between the parties and submitted to a jury, it is then like any other cause commenced in the ordinary mode, except that it must appear upon the record that the Court had jurisdiction to entertain the motion. In this case, there was an issue made up between the parties and submitted to a jury; and it also appears from the judgment entry that the Court had jurisdiction. This disposes of all the assignments of error which question the sufficiency of the notice, and the liability of the defendants for the debt, the former being cured, if defective, by the appearance, and the latter ascertained by the verdict of the jury. It is true, that it does not appear what the issue was which was tried by the jury,but it does appear that the“juryupon the issue joined, found for the plaintiff and assessed the damage at one thousand forty-nine dollars eighty cents.” It is then clear that the issue was one which tested the' liability of the defendants for the debt, and according to the decision of this Court, in Lucas v. Hitchcock, [2 Ala. Rep. 287,] we must intend that it was an issue formed upon the proper plea. The tendency of our decisions for some years, has been to presume that those acts have been done which although they do not appear upon the record, are supposed to exist, by what does appear, or else were waived by the parties at the trial; any other supposition indeed falsifies the record. It is also supposed that the recovery is wrong, because the note on which it was had, was payable to Andrew Armstrong, cashier, and does not appear to have been assigned to the Bank by Mm. In the case of McWalker v. The Branch Bank at Mobile, [3 Ala. 153,] we held, that the Bank could recover on such anote, by averring that it was made to the corporation by the name and description of Andrew Armstrong, cashier. Such is tho aver [29] ment in this case, and its truth is affirmed by the verdict of the jury. Whether the Court erred or not, in striking out the pleas and sustaining the demurrer of the plaintiff, as stated in the record, ■we have no means of determining, as the pleas are not found in the record. If it had been intended to revise the judgment of the Court in this matter, the facts should have been presented by bill of exceptions, or in some mode spread upon the record. The remaining question is, whether the judgment is void, as alleged, for uncertainty. It is supposed to be uncertain, because the parties are not named in the judgment. They are recited by name at the head of the judgment entry, and to that recital the terms “ plaintiff” and “ defendants” in the judgment of the Court must be referred. The time when the judgment was rendered is shown by the caption of the record, by which it appears that the Court was held at a term commencing on the second Monday of February 1841. The memorandum at the head of the judgment entry, in the words and figures, March 17, 1840, is doubtless a clerical misprision, and by the operation of the statute ofjeo fails, is amended by the other parts of the record showing the true date. It results from this examination, that there is no error in the judgment of the Court, and it is therefore affirmed.