Irwin v. Scruggs

32 Ala. 516

Opinion

WALKER, J.

Section 2645 of the Code authorizes a surety, whose principalis insolvent, when sued, to recover judgment upon notice of the pending suit, against such of his co-sureties as are not sued in the action, for their aliquot portion of the debt, excluding from the estimate the proportion of such of the sureties as are insolvent. It has been the uniform practice, for the court to receive proof of the requisite facts, and render judgment upon such motions, where the defendant does not make up an issue to be tried by the jury. — Broughton v. Robinson, 11 Ala. 922; Clemens v. Branch Bank of Montgomery, 1 Ala. 50; Smith v. Branch Bank at Mobile, 5 Ala. 26; Curry v. Bank of Mobile, 8 Porter, 360; Evans v. State Bank, 15 Ala. 81.

The defendant, who makes up no issue of fact, must be regarded as waiving tbe right of having the facts determined by a jury. ¥e know of no principle of common law, or of any statute, opposed to this mode of proceeding to these summary judgments on motion. The statute which authorizes the rendition of judgment final, upon judgment by default, nil dieit, or on demurrer, where the action is founded upon an instrument of writing ascertaining the plaintiff’s demand, has no application to this case, and is not to be construed as prohibiting the rendition of a judgment without the intervention of a jury in all cases not described by it. — Petigrew v. Petigrew, 1 St. 585.

[2.] The recital in the judgment entry, that the creditor “has at this time recovered judgment against the surety,” conveys with sufficient certainty the idea that the motion was made in pursuance to the notice at the time when the judgment was rendered.

No other objection, than those above noticed, has been called to our attention. We do not find in those objections, or in any other which has occurred to us, a warrant for reversing the judgment of the court below; and it is, therefore, affirmed.