Hatch v. State

40 Ala. 718

Opinion

BYBD, J.

This is a civil suit, and not a criminal proceeding; and we must reverse the judgment against the appellant, upon the authority and reasoning of the following cases, and the point hereafter next stated: Howie & Morrison v. The State, 1 Ala. 113; The State v. Hinson, 4 Ala. 673; Governor, use &c., v. Knight, 8 Ala. 297.

The court erred in entering judgment final against the surety, and setting aside the judgment nisi against the principal, in the same entry. The surety and principal being in court, the setting aside of the judgment nisi as to the latter, operated a discontinuance of the cause as to the former; and there is, therefore, no object to be accomplished by remanding the cause.

The judgment must be reversed as to the appellant, and a judgment here rendered, setting aside the judgment nisi in the court below against him.