Frazier v. Dismuke

• Citation: 118 So. 227,22 Ala.App. 594
• Decision Date: 09 October 1928
• Docket Number: 4 Div. 305
• Parties: FRAZIER v. DISMUKE.
• Court: Alabama Court of Appeals

118 So. 227

22 Ala.App. 594

FRAZIER v. DISMUKE.

4 Div. 305

Court of Appeals of Alabama

October 9, 1928

Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.

Action on account by E.M. Dismuke against Virgil Frazier. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J.C. Fleming and J.N. Ham, both of Elba, for appellant.

Wilkerson & Brunson, of Elba, for appellee.

BRICKEN P.J.

The complaint states a cause of action on open account. Judgment by default was rendered by the court on certificate of the clerk and without a writ of inquiry.

The only authority in the state for a judgment by default without a writ of inquiry in suits on account is found in section 7667 of the Code 1923. The appeal is on the record. The complaint fails to show an indorsement to the effect that suit was on an itemized account verified by affidavit. The judgment entry fails to show affirmatively the existence of the conditions specified in section 7667, authorizing the rendition of default judgments and dispensing with writ of inquiry. This must affirmatively appear from the record. Parsons Lumber Co. v. West-Steagall G. & M. Co., 163 Ala. 594, 50 So. 1034; Black v. Williamson & Young, 15 Ala.App. 573, 74 So. 397; Greer & Walker v Liipfert-Scales Co., 156 Ala. 572, 47 So. 307; Drinkard v. Premier Refining Co., 18 Ala.App. 109 90 So. 54.

The judgment entry recites that judgment was rendered "upon proof offered by plaintiff," but the character of the "proof" is not indicated; the necessary conditions prescribed by section 7667, supra, which are jurisdictional in their nature, are not made to appear. As stated in Parsons Lumber Co. Case, supra, "We must presume that each of the requirements therein [the statute] laid down was deemed material by the Legislature." In that case the judgment entry recites that judgment was "upon a verified account," and the court refused to presume in aid of the judgment, in the absence of a full statement to that effect that the verification of the account was by a "competent witness, made before and certified by an officer having authority under the laws of this state to take and certify affidavits." No presumption was indulged that there was a judicial ascertainment by the court rendering the judgment that the "verified account" was such a verified account the statute required as a condition predecent to the assessment of damages by the court without a writ of inquiry.

Of course, where...