Armstrong v. State

Supreme Court of Alabama

Armstrong v. State

1 Minor 160

Supreme Court of Alabama·Decided December 15, 1823·Published

Opinion

Judge Crenshaw

delivered the opinion of the Court.

As to the first assignment—The notice required in a sum* mary proceeding is not strictly process ; at least, not such process as by the Constitution is required to be in the name of the State. The Statute does not require that the notice shall be directed to the Sheriff or other officer. It only requires that it shall be served by the Sheriff of the County where the defendant may be found.(a)

As to the second assignment—;We deem the Bond sufficient, and pursuant to the requisitions of the Statute ; and that from the Bond it is to be inferred that Armstrong was Assessor and Collector of taxes for the County of Montgomery, entering on thp duties of the office, when it was taken before the officer appointed bylaw to receive it.(b)

As to the third assignment—We think that a sufficient [162] cause of action appeal's in the notice, the Comptroller’s certificate shewing the balance due- from Armstrong to the State for taxes, and indeed throughout the Record. As to the trial by Jury — the defendants did not appear and claim this privilege, and consequently they dispensed with ifc.(c)

The matter of the fourth assignment, if it could have availed the defendants, should have been plead in abatement. But the Statute, which prohibits a freeholder from beingsued out of the County of his residence, (d) is repealed so far as relates to motions against delinquent tax Collectors and their securities, by the Statutes which authorized this motion.(e) These Statutes direct that service of -such notice shall be' made on the defendants by the Sheriff of the County where they may be found, and that the trial shall be had in the Circuit or County Court of Dallas County.

As to the fifth assignment — We are unable to discover any uncertainty in the judgment. It is for a specific amount, and sufficiently certain to authorize an execution.

We are satisfied that the whole proceeding is in strict compliance with the requisitions of law, and are unanimous in affirming the judgment.

Footnotes

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Judge Crenshaw

delivered the opinion of the Court.

As to the first assignment—The notice required in a sum* mary proceeding is not strictly process ; at least, not such process as by the Constitution is required to be in the name of the State. The Statute does not require that the notice shall be directed to the Sheriff or other officer. It only requires that it shall be served by the Sheriff of the County where the defendant may be found.(a)

As to the second assignment—;We deem the Bond sufficient, and pursuant to the requisitions of the Statute ; and that from the Bond it is to be inferred that Armstrong was Assessor and Collector of taxes for the County of Montgomery, entering on thp duties of the office, when it was taken before the officer appointed bylaw to receive it.(b)

As to the third assignment—We think that a sufficient [162] cause of action appeal's in the notice, the Comptroller’s certificate shewing the balance due- from Armstrong to the State for taxes, and indeed throughout the Record. As to the trial by Jury — the defendants did not appear and claim this privilege, and consequently they dispensed with ifc.(c)

The matter of the fourth assignment, if it could have availed the defendants, should have been plead in abatement. But the Statute, which prohibits a freeholder from beingsued out of the County of his residence, (d) is repealed so far as relates to motions against delinquent tax Collectors and their securities, by the Statutes which authorized this motion.(e) These Statutes direct that service of -such notice shall be' made on the defendants by the Sheriff of the County where they may be found, and that the trial shall be had in the Circuit or County Court of Dallas County.

As to the fifth assignment — We are unable to discover any uncertainty in the judgment. It is for a specific amount, and sufficiently certain to authorize an execution.

We are satisfied that the whole proceeding is in strict compliance with the requisitions of law, and are unanimous in affirming the judgment.

Footnotes

Armstrong v. State, 1 Minor 160 (Ala. 1823).

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