Carter v. Pickard

11 Ala. 673

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

COLLIER, C. J.

The plaintiff in error was summoned as a garnishee at the suit of the defendant, to appear before a justice of the peace of Tallapoosa, and answer whether, and how much he was indebted to John Canon, against whom the defendant had recovered a judgment before the justice. It appears from a paper in the transcript, that the garnishee was indebted to the defendant in the judgment in a sum exceeding fifty dollars, and the justice condemned the same to the satisfaction of two judgments in toto, and a third in part, which the plaintiff below recovered against Canon before him. The garnishee prayed an appeal, and executed a bond for its prosecution, in which it recited that a judgment was rendered against him in three cases, &c.

The judgment of the circuit court recites, that the parties came “ by their attornies, and on motion the appeal is quashed by the courtthereupon a procedendo was awarded to the justice, and a judgment rendered against the garnishee and his surety in the appeal bond for costs.

Although the condition of the bond recites that an appeal was taken in “the three different cases,” and provides for their successful prosecution, &c., yet it cannot be inferred that they had been consolidated by the justice, even if it had been competent for him to do so. In fact such an idea is negatived by the papers returned to the circuit court, which indicate that several judgments were rendered. The transcript in the case before us, contains only the papers and proceedings in one case, and the question is, whether in this condition of the record, the appeal was rightly quashed.

In Lowry v. Stowe, 7 Porter’s Rep. 486, it was decided, that the proceedings in a cause commenced by attachment should not be quashed for a defect in the bond, unless the plaintiff, upon the requsition of the court, refused to perfect it by the substitution of a new bond. [See also, Alford v. Johnson, 9 Id. 320.] We think the same rule must be applied in appeals from justices of the peace, and that they should not be dismissed or quashed for a defect in the bond unless the appellant, upon being required by the court, fails or refuses to execute a perfect one.

True, the record does not state at whose instance the appeal was quashed, but the only reasonable intendment is, that the motion for that purpose was made at the instance of the appellee, who was involuntarily brought before the court. It is difficult to perceive upon what ground the appellant could have moved a dismissal of the appeal — he would not be heard to alledge the defectiveness of the bond; for he should have executed it in the form prescribed by the statute, and could not alledge his own omission as a ground for repudiating the cause.

The error of the court is sufficiently apparent, and no bill of exceptions is necessary to .show that the action of the circuit court was without, and in point of law against the appellant’s consent. Wherever the court acts against a party without his consent given, or to be implied, the legal inference is, that as it respects such party, the act is in invitum. If the bond does not conform to the statute, no judgment could be entered against the surety for costs; whether this is a clerical misprision, and amendable, we need not inquire, as, for the error already noticed, the judgment must be Reversed, and the cause remanded.