Connoly v. Ala. & Tenn. Rivers Railroad

29 Ala. 373

Opinion

STONE, J.

1. In summary proceedings, such as this, to sustain a judgment by default, the record must affirmatively show the existence of every material fact to give the court jurisdiction, and to sustain its judgment. The notice, though copied into the record, cannot be looked to, unless it is made part of the record by proper reference. These principles have been so often asserted by this court, that a citation of authorities would seem almost a work of supererogation.— Logwood v. Bank of Huntsville, Minor, 23 ; Lyon v. State Bank, 1 Stew. 466-7 ; Parsons v. Lee & Norton, 8 Porter. 126; Bates v. Pl. & Mer. Bank, ib. 99 ; Bondurant v. Woods, 1 Ala. 543; Smith v. Br. Bank of Mobile, 5 Ala. 26 ; Beard v. Br. Bank of Mobile, 8 Ala. 344; Andrews v. Branch Bank, 10 Ala. 375; Riggs v. State Bank, 11 Ala. 185; Jemison v. P. & M. Bank, 17 Ala. 754-8.

2. The judgment in this case was rendered by default final. This was also error, as unpaid calls for railroad stock are not “instruments of writing, ascertaining the plaintiff’s demand.” Code, § 2366.

The judgment of the circuit court is reversed, and the cause remanded.