Allums v. Hawley

GOLDTHWAITE, J. The general rule as to summary judgments is, that every fact necessary to sustain the particular jurisdiction exercised, shall appear by affirmative recitals upon the record. [Lyon v. The State Bank, 1 Stewart, 442; Curry [586] v. Bank of Mobile, 8 Porter, 360.] An exception has been established whenever the judgment entry refers to the notice, or other necessary preliminary proceedings, found in the record ; in which event the notice, or other proceeding, will be considered as having been acted on by the Court, and made a part of its judgment. [Bondurant v. Woods, 1 Ala. Rep. N. S. 543; White v. Bank at Decatur, Ib. 435.] In the present case there is no averment or recital in the judgment entry, that the three days notice, which the statute requires as a condition .upon which the jurisdiction is to be exercised, in the absence of an appearance by the party, was given; nor is this fact found by the jury. They merely ascertain that the facts stated in the notice are true. In Brown v. Wheeler, 3 Ala. Rep. 287, the entry went so far as to recite the appearance of the parties by their attornies, but we held this insufficient, in cases of this nature, to warrant the inference that the parties were regularly before the Court, either as having had, or as waiving the requisite notice. In the subsequent case of Jordon v. Br. Bank at Huntsville; the entry referred to the notice upon the record, as having been produced as proof of that fact, and the judgment-was sustained by looking to its contents. In the casé before us, if the Court, or the jury, had affirmed the fact of notice, and referred to the paper found in the record, we should not hesitate to look to it to sustain the judgment; but it is clear this matter escaped the attention both of the Court and jury, and consequently the jurisdiction fails. The judgment must be reversed and the cause remanded.