Elliott v. Clements

5 Ala. 470

• Court: Supreme Court of Alabama
• Decided: June 15, 1843
• Status: Published

Opinion

COLLIER, C. J.

This proceeding is doubtless intended to conform to the act of 1821, “ supplementary to an act entitled an act for the relief of securities.” [Aik. Dig. 384.] Without reciting that statute at length, it is enough for the present case to say, that it authorizes sureties who have paid money for their principals on judgment or execution, to move the court in which the judgment was rendered, for a judgment for the amount paid, with interest thereon.

It is unnecessary to consider all the exceptions which have been taken by the plaintiff* in error to the judgment entry. It is clear that its defects are such 'as will not allow us to sustain it. Brown, et al. v. Wheeler, [3 Ala. Rep. N. S. 287,] was a proceeding under the statute referred to, and among other causes it was adjudged to be erroneous, because the time when the surety paid-the judgment was not stated, so as to show whether the interest was properly computed.

But in the case at bar there is a more palpable defect in the judgment; it does not recite, that the judgment which was satisfied by the surety was rendered by the court in which this proceeding was instituted. This, it was intimated, was essential in Brown, et al. v. Wheeler. And, as in a case of this character, nothing can be intended beyond what is shown by the record, we think the defect is a fatal error.

If it appeared, that the notice found in the transcript was received and acted on by the county court, we might perhaps refer to it, to aid the judgment. [Jordan, ex’r, et al. v. The-Branch Bank at Huntsville, at January, 1843.] But the judgment entry does not show that the notice was before the court, and the case must be decided without regarding it as a part of the record.

Without inquiring whether there are other errors than those noticed, the judgment is reversed, and the cause remanded.

CLAY, J. not sitting.