Weeks v. Yeend

104 Ala. 546

• Court: Supreme Court of Alabama
• Decided: November 15, 1894
• Status: Published

Opinion

BRICKELL, C. J.

This was a summary proceeding by notice and motion under the the statute, (Code, § 3151), by the personal representative of a deceased surety, to recover contribution from a surviving co-surety. A judgment by default was rendered against the co-surety, and there was the award of a writ of inquiry to ascertain the damages the'plaintiff was entitled to recover. The jury returned a verdict assessing the damages, and for the damages assessed a final judgment was rendered, from which appeal was taken.

So far as shown by the record, there was no evidence that the relation of sureties existed between the • appellant and the intestate of the appellee, or of a common liability, or of the extent of such liability, or if such liability existed, of its satisfaction by the appellee or his intestate. These were the essential facts entitling the appellee to pursue this remedy. The uniform rulings of ' this court, since the introduction of summary proceedings of this character, have been, that a judgment by default therein rendered can not be supported on error, unless the record affirmatively discloses the existence of every fact entitling the party to such remedy. — 2 Brick. Dig. 466, § 1; Warwick v. Brooks, 70 Ala. 412.

The judgment is reversed, andjthe cause remanded.