Armstrong v. Holley

RICE, C. J. From the terms employed in the judgment entry, we take it for granted, that it was made after a summary proceeding had been commenced against the clerk and his sureties, under the provisions of the Code hereinafter noticed, and that the entry was made in that proceeding. We must then ascertain the nature of that proceeding. By the Code, judgment maybe rendered, summarily, against the clerk of the circuit court and his sureties, on three days notice, in favor of the county treasurer, for failing to pay over to the latter, on demand, all fines, or forfeitures, or other [307] moneys belonging to the county treasury. — Code, §§ 2596, 2616, 2621. In such case, the motion must be made against the clerk and his sureties upon his official bond, and judgment must be rendered against such of the forties, whether principal or surety, as may have received notice of the intended motion.— Code, § 2597. The proceeding is not only summary, but is a joint proceeding against the parties who have received notice of the intended motion. It is not, as to them, several as well as joint; and therefore the rules which apply to a joint action are applicable to it. A confession of judgment, by one of several joint defendants in a joint action, will not authorize the rendition of a final judgment against even the party making the confession, until the final decision of the cause as to the rest; and the confessing defendant must receive the same judgment as his co-defendants. Such confession by one cannot authorize a judgment against the other defendants. — Taylor v. Beck, 3 Rand. R. 316 ; Wiggins v. Klienhans, 4 Halst. R. 249 ; Johnson v. Vaughan, 9 B. Monroe, 218 ; Davidson v. Bond, 12 Illinois Rep: 84 ; Dow v. Rattle, ib. 373. A judgment in such joint action, against three defendants, which is erroneous as to one of them, must be reversed as to all. — See cases cited supra. And a judgment in such joint proceeding, against three, on the confession of one, will be reversed. — Ballinger v. Sheron, 2 Green, 144 ; Bilderback v. Hinchman, ib. 570. We cannot construe the language employed in the judgment entry hereinabove copied, to assert or to mean that the three defendants confessed judgment. — Ice v. Manning, 3 Ala. Rep. 121 ; Gatlin v. Gilder, ib. 536 ; Pope v. Puckett, ib. 552. Prom the record our conclusion is, that although the defendants had notice of the motion against the clerk and his sureties, for summary judgment under the Code, yet the confession was made by one only. And although the clerk himself made the confession, yet his confession does not authorize judgment against his sureties. — Dennis v. Chapman, 19 Ala. Rep. 29 ; Nash’s Digest of Ohio Reports, 382, §§ 26, 27. The judgment is reversed, and the cause remanded.