Hammett v. Smith
Supreme Court of Alabama
Error to the County Court of Talladega. This was an- action by the defendant in error, against the plaintiff in error, as assignor of a note made by one Y ardeman. The declaration, after stating the making and endorsement of the note, proceeds to aver the institution of a suit against Varde-man, in Talladega County Court, the recovery of a judgment against him, for the amount of the debt, and nine dollars fifty-one cents costs.
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Error to the County Court of Talladega. This was an- action by the defendant in error, against the plaintiff in error, as assignor of a note made by one Y ardeman. The declaration, after stating the making and endorsement of the note, proceeds to aver the institution of a suit against Varde-man, in Talladega County Court, the recovery of a judgment against him, for the amount of the debt, and nine dollars fifty-one cents costs. It then avers that an “ execution” issued upon said judgment “ from the proper office,” against Yardeman, for “ the damage and costs aboye stated,” and that the…
1Opinion of the CourtOrmond, J.
The first objection taken to the declaration is, that in describing the writ of fieri facias which issued on the judgment, it is called an “execution.” We think tins averment *157sufficient, as the declaration states that it was directed to the sheriff, to be levied on the goods and chattels, lands, &c., of the defendant; it is evident that it was a writ offieri facias.
Neither is the objection to the return of the sheriff well taken. It is true that the statute makes the return of “no property found” conclusive evidence of the insolvency of the maker of the note ; but we think the averment in…
2Cited by2 opinions
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- Hoge v. WardWest Virginia Supreme Court · 1930