Planters & Merchants Bank v. State

ORMOND, J. It is quite too clear for argument, that there was no authority in the court to render a judgment by default against the defendant, but at the time it was cited to appear. Two objections are made — First that the time at which the special term was to be held for the trial of the cause, and to which the bank was cited to appear, was wholly uncertain. The order was made on the 21st February, 1843, which was Tuesday, directing the special term to be held on Monday, the 28th February, instant, and this was the language of the summons issued, and served on the bank. When the term of a court is fixed by law, a mistake in the writ of the time when the court is to be held, will be unimportant, as the language of the writ is, that the defendant be summoned to appear at the next term of the court after the teste [660] of the writ, and that being ascertained by law, the mistake cannot mislead. But in this case, it was the order of the judge, made on the 21st day of the month, which gave the defendant information of the time when the cause would be heard. There was but one remaining Monday in the month of February after the order was made, which was the 27th day of the month; but the bank was cited to appear on the 28th. The time when the court would be held, was wholly uncertain, unless a citation to appear on one of two specific days, was sufficient notice of the time when the special term of the court was to be held. In Caskey v. The State, 6 Ala. R. 193, which was a proceeding before the judge of the county court to vacate the bond of a sheriff, unless he gave new sureties, a citation requiring the sheriff to appear within fifteen days from the date of the citation was held insufficient, because no precise day was set for the adjudication of the matter. That appears to be in principle the same as this case, as there is no sensible distinction between a citation to appear within a certain number of days, or on one of two days— both are uncertain. But in addition to this objection, the judgment it appears from the record, was rendered by default, because the defendant did not appear on the 29th of February. It is true, it is stated it was on Monday, the 29th of February ; but if it was conceded that a judgment rendered on Monday, the 27th of February, would be sufficient under an order appointing a special term to be held on Monday, the 28th of February,vand a citation to the defendant in accordance with it, by what authority can we reject the statement in the record of the day of the month when the judgment was rendered, and adopt the more uncertain designation of the day of the week, which would equally apply to any Monday of the month.? Upon the whole, we feel constrained to say, that there is no sufficient authority shown upon this record, for the rendition of a judgment by default. This renders it unnecessary to consider the other points made in the cause. Judgment reversed.