Gary v. Bank of Alabama

11 Ala. 771

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

Opinion

COLLIER, C. J.

Conceding, that where parties to be affected, are informed by a notice that a motion will be made on a particular day of a term for judgment against them, it is necessary to submit the motion on that day, or the notice will cease to be available ; yet it does not become so wholly inoperative that a motion afterwards made cannot, under any circumstances, be entertained. Here, it appears from a note made on the trial docket for the term next after the return of the notice, and after the motion had been submitted that the cause was continued by the defendants. This note was quite sufficient to have authorized an entry nunc pro tunc upon the minutes, if necessary, and may be considered as having been formally made. The continuance of a cause at the instance of a party, presupposes, or at least admits its pendency in court, and will estop him afterwards insisting that it had been, previously discontinued. ' .

We will not stop to inquire whether the declarations of the agent of the Bank are so connected with the receipt and payment of the money as to constitute a part of the res gesta ; for conceding their truth, they furnish no answer to the suit by the bank. It must be borne in mind that Hooks, though a defendant in the same execution, was the surety of Bunn, and therefore interested in its collection from his principal’s estate. Upon its return unsatisfied, his liability continued, and there was nothing unnatural in endeavoring to make such terms with the bank as would relieve himself as much as possible. Certainly he might stipulate for the immediate payment of a part by himself, and that the bank should proceed against the sheriff and his sureties for the default in not making the money. It may be that the sheriff might show the payment by Hooks and pro tanto diminish the recovery against him; but certainly such an agreement could not impair the right of the bank to charge him for the residue.— Thus far at least the judgment would remain unsatisfied, and the remedy for the official default as available as when the ft. fa. was returned.

It is immaterial whether the proceeding was instituted at the suggestion of Hooks or not — -it is in the name of the bank, commenced and prosecuted by its attorney, and whether in its initiation the directory had any agency, is immaterial— they have adopted it, and that is quite sufficient. There is nothing in the record but the notice and suggestion that indicates that the plaintiff sought to recover the full amount of the execution, and the judgment rendered for less than half, with damages according to the statute. There is no error in the ruling of the circuit court, and its judgment is consequently affirmed.