McDowell v. Mitcham

Supreme Court of Alabama

McDowell v. Mitcham

37 Ala. 417

CourtSupreme Court of Alabama

DecidedJanuary 15, 1861

StatusPublished

Cited by2 cases

This text of 37 Ala. 417 (McDowell v. Mitcham) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDowell v. Mitcham, 37 Ala. 417 (Ala. 1861).

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Opinion

STONE, J.

Two. principles,-,we- think,, are-• decisive of [419]*419¿bis case. The final judgment states the case as “ Joshua Mitcham and Joseph Mitcham vs. John Bledsoe, and James T. Bledsoe, claimant.” The recital is, “ Came the parties, by their attorneys; arid issue being joined, came thereupon a jury,” &c. The verdict was in favor of plaintiffs in execution, assessing the value of the property levied on. The judgment-entry then proceeds'to recite; “that Joshua Mitcham and Joseph Mitcham recovered, before Washington Taylor, a justice of the peace in and for, said county, on the 17th day of'February, 1857-, a judgment for $28 -90, and $.1 40 costs, and also one, on-the same day, for $36 '4-4, and $i 40 costs, and execution issued and was levied,” '&ce Now, if these recitals are true — -and we must so regard them — the same plaintiffs recovered two judgments against-one and the same defendant, executions on-which .were levied on the same property, and a single claim was interposed. The parties then, by their pleadings, consolidated• the two cases, and went to trial on..one- issue, embracing the two cases. This being the case, and no question Being raised in the court-below as to the regularity of the proceedings, the question cannot,, for the first-time,'be raised in this court, that there should have been two issues, two trials, and two judgments. Consensus tollit .errorem. Gager v. Gordon, 29 Ala. 344; Byrd v. McDaniel, 26 Ala. 582; Vaughan v. Robinson, 22 Ala. 519; Rose v. Thompson, 17 Ala. 628; Lampley v. Beavers, 25 Ala. 534.

[2.] If, in failing to render judgment against-John Bledsoe, tlie other surety on the appeal bond, the circuit court committed any error-of which the present appellants can complain .(a question which we do--not decide), that error was purely clerical, and could’have been amended in the court below. This court will not consider of such error in the first instance. — Grayham v. Roberds, 7 Ala. 719; Savage v. Walshe, 26 Ala. 633; Hunt v. Ellison, 32 Ala. 210; Shep. Dip. 572, § 152.

If the circuit court rendered j udgment against the surety, for a greater sum than the penaltyof the appeal bond, there is nothing in-this record which enables us to so determine.

Judgment affirmed.

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STONE, J.

Two. principles,-,we- think,, are-• decisive of [419]*419¿bis case. The final judgment states the case as “ Joshua Mitcham and Joseph Mitcham vs. John Bledsoe, and James T. Bledsoe, claimant.” The recital is, “ Came the parties, by their attorneys; arid issue being joined, came thereupon a jury,” &c. The verdict was in favor of plaintiffs in execution, assessing the value of the property levied on. The judgment-entry then proceeds'to recite; “that Joshua Mitcham and Joseph Mitcham recovered, before Washington Taylor, a justice of the peace in and for, said county, on the 17th day of'February, 1857-, a judgment for $28 -90, and $.1 40 costs, and also one, on-the same day, for $36 '4-4, and $i 40 costs, and execution issued and was levied,” '&ce Now, if these recitals are true — -and we must so regard them — the same plaintiffs recovered two judgments against-one and the same defendant, executions on-which .were levied on the same property, and a single claim was interposed. The parties then, by their pleadings, consolidated• the two cases, and went to trial on..one- issue, embracing the two cases. This being the case, and no question Being raised in the court-below as to the regularity of the proceedings, the question cannot,, for the first-time,'be raised in this court, that there should have been two issues, two trials, and two judgments. Consensus tollit .errorem. Gager v. Gordon, 29 Ala. 344; Byrd v. McDaniel, 26 Ala. 582; Vaughan v. Robinson, 22 Ala. 519; Rose v. Thompson, 17 Ala. 628; Lampley v. Beavers, 25 Ala. 534.

[2.] If, in failing to render judgment against-John Bledsoe, tlie other surety on the appeal bond, the circuit court committed any error-of which the present appellants can complain .(a question which we do--not decide), that error was purely clerical, and could’have been amended in the court below. This court will not consider of such error in the first instance. — Grayham v. Roberds, 7 Ala. 719; Savage v. Walshe, 26 Ala. 633; Hunt v. Ellison, 32 Ala. 210; Shep. Dip. 572, § 152.

If the circuit court rendered j udgment against the surety, for a greater sum than the penaltyof the appeal bond, there is nothing in-this record which enables us to so determine.

Judgment affirmed.

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37 Ala. 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdowell-v-mitcham-ala-1861.

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