Peck v. Colby

WALKER, J. — Tbe act of 1824, (Clay’s Digest, 219, § 87,) under which this proceeding was instituted, authorizes the notice to be given to either the constable or his sureties; but the proceeding and judgment cannot be against the sureties alone, without the constable, as was decided in the cases of Orr v. Duval, 1 Ala. 262, and James v. Auld & Spear, 9 Ala. 462. The proceeding before the justice of the peace, in this case, seems to have been against the sureties alone; and judgment was rendered against them, without the constable. The constable was never in any way made or treated as a party. The appeal was by the sureties alone, and they were the only defendants in the circuit court. After a case has been removed into the circuit court, by appeal or certiorari, there can be no change of parties, so as to bring in a new party who was not proceeded against before the justice, and who was no party to the appeal. — Wilson v. Collins, 9 Ala. 127. Erom the views above expressed, it is clear that the plaintiffs were not entitled to a recovery, in the attitude in which the case was presented to the circuit court; and that they cannot, by any amendment, so improve the condition of their case as to authorize a recovery. Without 253 passing upon the correctness of the reason given by the eourt below for the general charge against the plaintiff’s right of recovery, we must affirm, the judgment.