Graham v. Reynolds

45 Ala. 578

• Court: Supreme Court of Alabama
• Decided: January 15, 1871
• Status: Published

Opinion

PECK, C. J.

The judgment in this case was rendered in a summary proceeding, on motion against appellant, H. Graham, as tax collector of Calhoun county, and the other appellants as his sureties. The judgment is by nil dicit.

The judgment entry fails to state the facts necessary to give the court jurisdiction, or to show the liability of the defendants.

From the earliest history of this court, it has been often and uniformly held, that in such cases, it must appear by the judgment entry, when the judgment is by default, that the defendant had the notice which the law requires, and that the facts were proved which give the court jurisdiction, and show the liability of the defendant for the debt or penalty sought to be recovered. If the defendant appear, as he does where the judgment is by nil dicit, it is evidence of notice, nothing more; every other fact necessary to entitle the plaintiff to judgment must be proved, and appear in the judgment entry. — Smith v. Br. Bank at Mobile, 5 Ala. 26; Andrews v. Br. Bank at Mobile, 10 Ala. 375 ; Barclay, Adm’r, v. Barclay, 42 Ala., 345 ; Conoley v. A. &. T. Railroad, 29 Ala. 373.

The judgment is reversed, and the cause remanded.