Sugg's Administrator v. Winston's Administratrix

BRICKELL, J. — The contract of an assignor of paper not commercial is, under our statutes, conditional, and cannot ripen into an absolute undertaking, except upon the performance of the conditions prescribed, or the allegation and proof of the facts excusing performance. The condition* prescribed, when the amount due on the contract is, as in this case, over fifty dollars, is a suit against the maker, in the county of his residence, to the first court to which suit can be properly brought, after making the indorsement or assignment; and, if judgment is obtained, execution must be issued, returnable to the next court thereafter, and his inability to answer such judgment proved by the return of “ no property found.” R. C. § 1851. The suit against the maker, prosecuted to judgment, is provable by the production of the record properly authenticated. Kain v. Walke, 12 Ala. 184. Irregularities or errors in the prosecution of suit against the maker, or in the rendition of judgment, to which he submits, are not available to the assignor, when the enforcement of his liability is sought. Kain v. Walke, supra; Schaefer v. Adler, 14 Ala. 723; Brown v. Johnson, 42 Ala. 208. The record of the suit against the maker, commenced and prosecuted to judgment in the Circuit Court of Franklin County, in 186Í, should have been received in evidence. If that was the county of the residence of the maker, and he submitted to the jurisdiction of that court, it is not for the assignor, in avoidance of his liability, to question the validity of the judgment. It was capable of enforcement by execution against the maker, if he interposed no objection. If the judgment had been executed, its execution could not be subsequently dis [589] turbed. Griffin v. Ryland, 45 Ala. 688. If Franklin County was the county of the residence of the maker, there was no other court than the one in which the suit was commenced and prosecuted to judgment in which suit could have been brought; and if the judgment of that court could be deemed a nullity, then we would be compelled to hold the assignee discharged from the necessity of suit against the maker. In that event, the suit would have been an impossibility, and the maxim would be applied, Lex non oogit ad impossibilia. 2. If the Circuit Court, in the rejection of the record as evidence, proceeded on the supposition that judicial proceedings had in this State during the war were void, it misconceived the decisions of this court. Such proceedings are not void, but are by the law of this court esteemed as foreign, or rather quasi foreign. If fully executed, and no fraud has intervened, they stand on the footing of domestic judgments. Griffin v. Ryland, supra; Mosely v. Tuthill, 45 Ala. 651; Martin v. Hewitt, 44 Ala. 418; Bibb & Falkner v. Avery, 45 Ala. 651. If such proceedings were instituted during the war, and were transferred to the courts organized after the restoration of peace, under the authority of the United States, and ripen into judgment, the judgment is purely domestic. Wilson v. Isbell, 45 Ala. 142. It cannot be doubted that if the maker, when he is properly suable, resides in a foreign jurisdiction, the assignee may there sue him; and if with reasonable diligence the suit is prosecuted to judgment, the requirements of the statute would be satisfied. In every point of view, the suit against the maker must be deemed a compliance with the diligence demanded by the statute. 3. The transcript of the record was certified by the clerk of the Circuit Court of Franklin County, in accordance with the statute (R. C. § 2695) prescribing the mode of authenticating the records of the courts of this State. This statute we have held applicable to judicial proceedings during the war. The keeper of the records of the courts, now exercising the authority and jurisdiction of the courts existing during the war, is the legal custodian of the records of the latter courts, and authorized to authenticate them as instruments of evidence to be used in other courts. Green's Administrator v. Scarborough, January Term, 1873, ante, p. 137. The Circuit Court erred in its rulings ; the nonsuit is set aside, and the cause is remanded for a new trial.