Baker v. Young

90 Ala. 426

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

SOMERYILLE, J.

If there is anything in the first assignment of error, the objection raised by it is obviated by the return to the certiorari, the corrected record showing this assignment to be entirely groundless.

1. The suffering of a decree pro confesso, after the proper personal service, was an admission by the defendants of the allegations of the bill. — Code, 1886, § 3483. This admission embraced the correctness of the exhibits attached to the bill, and dispensed with the necessity of making any formal proof of them.—Carradine v. O'Connor, 21 Ala. 573. It is too plain for argument, that the case made by the bill fully authorized the relief prayed, which was for the enforcement of the vendor’s lien for the unpaid purchase-money on the lands. 3 Brick. Dig., §§101-104; Code, 1886, §1764.

2. The only error we discover in the decree is that portion, •of it ordering, in limine, that execution issue for the amount of the debt ascertained to be due from the appellant Baker. 'The court should have first ascertained the balance due after the sale of the land which was decreed to be sold — deducting the proceeds of such sale from the whole amount of the indebtedness as ascertained by the decree — and not until then should execution have been ordered to issue for such balance. This is the requirement of the statute. — Code, 1886, §3605; Code, 1876, §3908.

The award of execution was premature. This error in the decree will be corrected at the costs of the appellee, and on the authority of Winston v. Browning, 61 Ala. 80, as corrected, the judgment of the City Court will be affirmed.