WILLIAMS et al. vs. McCURDY & ALDRICK

WILLIAMS et al. vs. McCURDY & ALDRICK. 1. Since the passage of the act of 1848, a summary judgment under the act of 1819 cannot be rendered against a sheriff and his sureties, for his failure to return an execution, although the notice of motion was issued before the passage of the act of 1848. 2. lío direct judgment can be rendered in the Appellate Court against the plaintiff’s security for costs in the court below, but the certificate of the judgment rendered iu the former is a suficient predicate for the statutory proceeding by motion against the security below. Error to tbe Circuit Court of Perry. Tbe record does not show tbe name of tbe presiding judge. MOTION by tbe defendants in error for a summary judgment, under tbe act of 1819, (Clay’s Digest 206 § 22,) against Job M. Williams, as sheriff of Perry county, and bis sureties on bis official bond, for bis failure to return an execution according to law. Tbe notice of tbis motion was issued on the 5th of November, 1846, and was served on Williams on tbe 7th of November, 1846. It sets forth tbe contents of tbe execution in tbe usual form, and appears to have been regularly docketed and continued until tbe Spring term, 1849, when tbe motion was tried on issue joined, and a judgment rendered for tbe plaintiffs, for tbe amount of said execution and interest'thereon, according to tip provisions of tbe act of 1819. Tb revise this judgment, the defendants have sued out tbis writ of error. I. W. Garrott, for plaintiffs in error, cited Broughton v. Br. Bk. at Mobile, 17 Ala. 828; Pope v. Lewis, 4 ib. 487; State v. Tombeckbe Bank, 1 Stew. 347. E. W. Peck, contra. [MAJORITY — G-IBBONS, J. Per Ouricrn.] G-IBBONS, J. This case, we tbink, is entirely witbin tbe principle announced by tbis court, in tbe cases of Broughton et al. v. Branch Bank at Mobile, 17 Ala. 828, and Pope v. Lewis, 4 Ala. 487; and tbe judgment of tbe court below must be reversed on tbe authority of those eases. Tbe pro-eeeding in the court below was purely a statutory one, and the judgment rendered was for an amount not authorized by any statute in existence at the time it was rendered: it is, therefore, a judgment unauthorized bylaw. Let the judgment of the court below be reversed, and the notice be dismissed, and let the plaintiffs in error recover their costs in this court, and in the court below. Note. — After the foregoing opinion was pronounced, a motion was submitted by plaintiffs’ counsel relative to costs, upon which the following opinion was delivered: Per Ouricrn. In this case, a motion is made by the plaintiffs in error, to have judgment here rendered against the securities for costs, both for the cost of this court and of the court below; and this motion failing, then, to have the cause remanded, in order that they may have the statutory remedy in the court below against the security for costs in that court, and also that judgment be here rendered against the said security for the cost of this court. Our opinion is, that we have no power to render any judgment here directly against the security for costs in the court below. That security must be proceeded against in the court below, according to the statute in such case made and provided. Nor do we think it necessary for that purpose, to remand the cause, as the certificate of the judgment here rendered will be a sufficient predicate for the proceeding by motion in the court below.