Crawford v. Crawford

• Decision Date: 29 October 1898
• Parties: CRAWFORD ET AL. v. CRAWFORD.
• Court: Alabama Supreme Court

24 So. 727

119 Ala. 34

CRAWFORD ET AL. v. CRAWFORD.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Henry county; J. W. Foster, Judge.

Action by A. C. Crawford against J. R. Crawford and others for breach of a garnishment bond. The defendants filed a plea of the statute of limitations of three years; setting up that the bond sued on was executed on July 30, 1891, and this suit was instituted on October 27, 1894, and that said suit for the breach of the condition of the bond is barred by the statute of limitations of three years. There was a demurrer interposed to this plea upon the ground that actions for the breach of the conditions of garnishment bonds are not barred in three years, and therefore said plea is no answer to the complaint. The ruling upon this demurrer is set forth in the judgment entry, or what purports to be the judgment entry, as copied in the record on the present appeal, as shown in the opinion. There was judgment rendered in favor of the plaintiff. The defendants appeal, and make the following assignment of error: "That the court erred in sustaining the demurrer to the plea" of the statute of limitations. Affirmed.

J. B Dell, for appellants.

Espy &amp Farmer, for appellee.

McCLELLAN J.

Defendants filed a plea of the statute of limitations of three years. Plaintiff demurred to the plea. It is claimed that the court sustained this demurrer, and that supposed action is alone assigned as error here. But there is no judgment of the circuit court sustaining the demurrer to be found in the record before us. What purports to be a judgment entry is set out in the transcript. So far as it has any relation to the complaint, plea, or demurrer, its language is this "Plaintiff asks leave to file an amended complaint which was granted by the court. The defendant pleads thereto. Defendant amends his plea No. 1 by leave of the court, and plaintiff's demurrer to said plea No. 1 as amended is sustained by the court." There is no recitation that the parties came by their attorneys and submitted the cause on the demurrer, nor that the court considered the same, and adjudged that the demurrer was well taken and that it be sustained, or anything of this sort. What was done, and all that was done and is shown by the alleged judgment entry, was and is the copying by the clerk of mere docket memoranda into the record, or what should be the record, or, worse still, the mere...