Baker v. Swift

• Decision Date: 09 May 1889
• Parties: BAKER ET AL. v. SWIFT ET AL.
• Court: Alabama Supreme Court

6 So. 153

87 Ala. 530

BAKER ET AL. v. SWIFT ET AL.

Supreme Court of Alabama

May 9, 1889

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

This was an action of detinue by Geo. P. Swift & Son against R. P & R. H. Baker. The appeal is from a judgment by default. The judgment entry recites "that the plaintiffs came by their attorneys, and the defendants, being called, came not whereupon came a jury," etc. There were but two assignments of error, which were as follows: "(1) The circuit court erred in allowing the case to go to a jury upon a summons and complaint not signed by the clerk. (2) The circuit court erred in entering a judgment against the defendants below, in manner and form as shown by the record under the facts as shown by the same."

Harrison & Ligon and J. J. Abercrombie, for appellants.

A. & R. B. Barnes, for respondents.

STONE C.J.

This was a statutory action for the recovery of personal chattels in specie,-a substitute, with additional powers, for the common-law action of detinue. The summons which accompanied the complaint was not signed by the clerk, but the indorsement upon it, stating that plaintiffs had made the necessary affidavit and given bond, and commanding the sheriff to seize the chattels, was signed by the clerk officially, and bears the same date as the summons. Under this order of seizure the sheriff did take possession of the chattels; and, the defendants failing to give a replevin bond within five days, the plaintiffs gave the requisite bond, and took the property into possession. Code 1886, § 2717 et seq.

We agree with counsel that what purports to be extracts from the docket in the circuit court below is no part of the record, and cannot be looked to by us. The docket is not a record, and what the transcript purports to set forth as part of it is but the unauthorized, unofficial statement of the clerk. We will treat this case as if that were stricken out.

This case remained on the docket of the circuit court for over two years, when a judgment by default was taken against the defendants, with a writ of inquiry executed. No objection was taken in the court below, for the failure of the clerk to sign the summons, nor are we informed whether the copy-summons was signed or not. As we have said, the writ of seizure, which the law requires to be indorsed on the summons, was signed by the clerk officially, and bears the same date as the order of...