Neff v. Edwards

SOMERVILLE, J. — 1. The record shows a judgment by default against John Neff and Anna Neff, two of the defendants in the court below, upon whom no process had been served, and who did not appear by attorney or otherwise, in either the justice’s or the Circuit Court. This is a clerical error, which could have been corrected on motion in the Circuit Court. It will be corrected in this court without remanding the cause, at the costs of the appellants, and the judgment will be declared not to be binding on said appellants, John Neff and Anna Neff. — Ladiga Saw Mill Co. v. Smith, 78 Ala. 108; Code, 1876, § 3154. 2. It is shown by the judgment-entry that the plaintiff failed to recover against the defendant Kirshmer, and he [249] was, therefore, entitled to have his “aliquot proportion of the whole cost taxed against the plaintiff.” — Code, 1876, §§ 3143, 2919. The judgment will be corrected in this court so as to adjudge the said defendant Kirshmer to be entitled to his costs as against the plaintiff. 3. Appeals from judgments rendered by a justice of the peace are tried in the Circuit Court' de novo, the judgment in the latter court not being one of affirmance, nor a reversal of the justice’s judgment, but a new and independent judgment founded, on the merits of the case as tried in the Circuit Court. — Burns v. Howard, 68 Ala. 352; Abrams v. Johnson, 65 Ala. 465; Code, 1876, § 3121. We must construe, in the light of this principle, section 3125 of the Code relating to the rendition of judgments in the Circuit Court against sureties on appeal bonds from justices of the peace. This section provides that “where the judgment is affirmed, on appeal or certiorari, judgment must be rendered by the court against the surety, as well as the principal, which must include the costs of the inferior and appellate court.” — Code, 1876, § 3125. Under this section the Circuit Court was fully authorized to render judgment against Chamblee and Arnold, the sureties of two of the appellants from the justice’s court who failed to prosecute their appeal to effect in the. Circuit Court, the judgment appealed from being several as well as joint. — Code, 1876, § 2905. 4. The intention of the defendant to waive all exemptions of personal property was expressed with sufficient clearness in the note sued on, and the complaint contained an averment of such waiver with sufficient certainty to authorize the court to render a judgment adjudging a waiver of such exemptions under the statute. — Code, 1876, §§ 2848, 2847. The judgment of the Circuit Court will be corrected as above stated, at appellant’s cost, and as thus corrected will be affirmed. ■