Bancroft v. Stanton

COLLIER, C. J. — In Castleberry v. Pearce, 2 Stewt. & P. Rep. 141, the defendant moved in arrest of judgment, that al-' though the jury had returned a verdict, the record did not show that an issue had been joined, or any plea interposed by the defendant. This Court held, that, as the judgment recited that the jury were sworn to try an issue, they would intend that the pleadings had been regularly made up, and lost from the papers, as the opposite conclusion would falsify the record. In Wheeler, et al. v. Bullard, 6 Porter’s Rep. 352, we determined, that after verdict upon an issue tried, or judgment, or plea, withdrawn, the defendant could not, on error, insist upon the want of a declaration, but it would be presumed that a declaration was dispensed with by the parties, or that it was lost after judgment. [See Benson v. Campbell, 6 Porter’s Rep. 455; Napper v. Noland, 9 Id. 218; Price, et al. v. Chevers, Id. 511; Elliott v. Smith & Co., use, &c., 1 Ala. Rep. 74; Ware v. Todd, Id. 199.] So where the judgment recited, that the parties came by their attorneys, “ and thereupon came a jury, &c., who, on then-oaths, do say,” &c. it will be inferred, either that a proper issue" was tried, or the plea was waived, although none appeared in the record. [Lucas v. Hitchcock, 2 Ala. Rep. 287.] To the [354] same effect are Clark’s Adm’rs v. Stoddard, Miller & Co. 3 Ala. Rep. 366 5 Bethea v. McCall, Id. 449. In the present case, the judgment recites the appearance of the parties by their attorneys, and the submission of the cause to a jury, who found a verdict for a definite sum in damages. In this condition of the record, the cases cited show that the absence of a statement of the plaintiff’s cause of action, a plea and issue, furnish no ground for the reversal of the judgment. By the act of 1839, it is declared, that “All covenants, conveyances, and all contracts in writing, which import on. their face to be under seal, shall be taken, deemed, and held, to be sealed instruments, and shall have the same effect as if the seal of the party, or parties, were affixed thereto, whether there be a scrawl to the name of such party, or parties, or not.” [Clay’s Dig. 158, § 41.] The writing intended as an appeal bond, professes to be sealed with the seals of the appellant and his surety, and, being a contract in writing, must, according to the act cited, be regarded as a bond.| It is dated the 20th of September, 1843, recites that the judgment was rendered on the 16th of the same month, in favor of the plaintiff, its amount, &c., and that the intestate had appealed to the next County Court, in Mobile county, at the admiralty term, 1843. There is a statute which requires appeals from justices of the peace, in that county, to be made to the terms for the trial of admiralty cases, (as they are called,) and although there are more terms than one holden in the year, yet the recital that the appeal is to the “ next” Court, is sufficiently definite to indicate when it is to be returned. The condition of the bond, is in terms, equivalent to those prescribed by the statute, which requires it to be executed, as a condition on which the appeal is allowed. [Clay’s Dig. 314, § 9 : see, also, Ex parte Weissinger and Crook, at this term.] In Brown v. Bartlett, 2 Ala, Rep. 29, it was held that an amendment of a judgment might be made at a term subsequent to its rendition, if there is evidence of record to authorize it. And in a previous decision, where a judgment had been rendered in blank, as to the amount, an amendment was permitted after the lapse of seven years. [Wilkerson v. Goldthwaite, 1 Stewt. & P. Rep. 159.] So in Allen and Dean v. Bradford and Shotwell, 3 Ala. Rep. 281, it was determined [355] that a judgment may be amended ñuncpro tunc, although no execution has issued on the original judgment, within a year and a day from its rendition. Further, that a judgment nunc pro tunc, may be entered without notice to the opposite party. [See, also, Fuqua and Hewitt v. Carriel and Martin, Minor’s Rep. 170; Clemens v. Judson and Banks, Id. 395; Thompson v. Miller, 2 Stewart’s Rep. 470; Draughan and others v. The Tombeckbee Bank, 1 Stewart’s Rep. 66 ;Mays, et al. v. Hassell, Adm’r, 4 Stewt. & P. Rep. 222.] In the case at bar, the verdict .and judgment against Bancroft, were sufficient evidence to authorize the County Court to render judgment against the surety in the appeal bond. The liability of the latter, was a consequénce of the judgment against the administrator of his principal, and this judgment, together with the bond, was all that can be required to sustain the action of the Court below. If the bond was a forgery, it is. possible that Court could arrest proceedings on the judgment; but be this as it may, the 'surety would not be reme-diless. The judgment against McCaw, is certainly not very technical, yet it clearly shows, when taken in connection with the order made to set aside the judgment, both as to Bancroft and himself, that the Court intended to make them both liable to pay the amount of the verdict and costs; the one de bonis intes-tatis, the other de bonispropriis, &c. This, though informally, is, substantially, expressed by the order for the execution, acting upon the previous entries. The intention being apparent, if the execution had issued against the plaintiffs in error, separately, all inj ury might have been prevented by a supersedeas ; and if there be an error in the entries as to the surety, it is at most a mere clerical misprision, amendable under the statute, at the cost of the plaintiffs in error. [Dearing, Sink & Co. v. Smith & Wright, 4 Ala. Rep. 432.] It may be stated generally, that it is not allowable to join in the same action, an executor, or administrator, with one chargeable on his own account. But this rule, has never been applied to a case like the present. Here the surety is not joined with the administrator, but his liability is consequential, depending upon the fact, whether his principal is successful in the prosecution of the appeal; if he fails, the terms of the bond fix [356] the liability of the surety, and the statute declares that judgment shall be rendered against both of them, and execution issue against both, or either of them. [Clay’s Dig. 315, § 11.] The fact that the appellant died, pending the appeal, and his administrator was made a party in his stead, cannot make a different rule applicable. Bancroft cannot be heard to alledge that a judgment was rendered against him within six months after he became administrator. By submitting to a trial by jury, he waived the right to continue, and he cannot now set aside the judgment, that he may avail himself of it. [Farley’s Adm’r v. Nelson, 4 Ala. Rep. 183.] The order for a notice to the appellee, being dated previous to the removal of the cause to the County Court, can’t affect the judgment of the Court; if necessary we would intend that the date was incorrectly stated. It may be said, however, both in respect to this and the other orders, previous to the trial, that they were all cured by the appearance of the defendant, and the verdict and judgment. Our conclusion, from a view of all the points presented, is, that the judgment must be affirmed.