Buckley v. Wilson

STONE, J. There is nothing in the first assignment of error. A. A. Wilson, and “A. A. Wilson, trustee,” without more, are one and the same name. Trustee, without stating for whom, or of what he is trustee, and when the complaint does not show that he sues in that capacity, is mere descriptio'personae. A suit by A. A. Wilson, trustee, is a suit by A. A. Wilson; and in either form, if there be nothing . else in the complaint, will sustain only such action as he can maintain in his own name. — Agee v. Williams, 27 Ala., 644; Crimm v. Crawford, 29 Ala. 626. 2. The ruling on the demurrers appearing only in the bill of exceptions, and not being shown in the judgment entry, no assignment of error based on such ruling will be considered here. — See Petty v. Dill, 53 Ala. 643. 3. The third assignment of error questions the ruling of the court, limiting the effect, as evidence before the jury, of the petition for certiorari, the affidavit attached to it, thefiat of the judge granting the certiorari, and the bond sued on. These papers, offered by the defendant below, “the court permitted to go to the jury, as evidence of the reputed solvency of Knox; but instructed the jury, it was not admissible as evidence for any other purpose.” This charge was excepted to by appellant, who was defendant in the court below. It is contended for appellee that, inasmuch as the act “in relation to appeals from justices’ courts,” approved Dec. 24, 1868 (Pamph. Acts, 439), does not mention certiorari by name, its provisions do not extend to the latter form of proceeding. We do not consider it necessary to decide this question. That act relieves parties appealing from giving security, only when affidavit is made that they are unable to give security. The affidavit in this case, sworn to by the party petitioning for certiorari, was, that she was “unable to give any security on the bond, except” a certain named person. The fat of the judge directed the clerk of the court to “issue writ as prayed for, on giving bond in the sum of two hundred dollars, with” the person who had been named in the affidavit as surety. Thereupon, the clerk took and approved the bond, with the person named in the affidavit and fat as sole security. The affidavit made in this case does not conform either to the letter or the spirit of the statute, and furnished no warrant, authorizing the clerk to take the named person as sole security. Neither did the direction of the judge confer such authority. It was coram non judice, and void. The duty of approving the bond rested with the clerk; and he should not have approved it, unless the surety or sureties were sufficient. — Bev. Code, § 3257. See McNutt v. Livingston, 7 Sm. & Mar. 649, approved in Governor v. Wi [396] ley, 14 Ala. 180. True, if the bond thus approved had been sufficient, the clerk would have incurred no liability. That question is not presented for our consideration. It was passed on by the jury, under an instruction from the court fully as favorable as appellant could claim. The bond sued on was certainly legitimate evidence in the cause. It was part of plaintiff’s evidence, necessary to his recovery. The other papers were wholly immaterial; and the charge of the court upon their effect as evidence could have worked no possible injury to the appellant. No argument is offered here in support of the fourth assignment of error, and we do not feel called upon to notice it. We are not able, however, to discover any thing in it. Judgment of the City Court affirmed.