Evans v. State Bank
Supreme Court of Alabama
Error to the County Court of Tuscaloosa. Motion by the bank, against the plaintiffs in error, sureties of Daniel Chandler, sheriff of Perry county, for the amount of an execution collected by him, and five per cent, per month, from the time of making demand of payment. The notice was, that a motion for judgment would be made at the December term, 1846, of the county court of Tuscaloosa.
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Error to the County Court of Tuscaloosa. Motion by the bank, against the plaintiffs in error, sureties of Daniel Chandler, sheriff of Perry county, for the amount of an execution collected by him, and five per cent, per month, from the time of making demand of payment. The notice was, that a motion for judgment would be made at the December term, 1846, of the county court of Tuscaloosa. It does not appear from the record that any action was had upon the motion at that term, but at the May term, 1847, a judgment was rendered in favor of the bank, the defendant appearing by his attorney, and it…
1Opinion of the CourtDaegan, J.
The first question presented by the plaintiff in error is, that no action being had on the notice, which was returnable to the December term, until May, therefore the notice was functus officio, and it was erroneous to render judgment thereon.
When a party gives notice, that he will move the court in a summary proceeding for judgment, at a particular term, .some action must be had on the notice at the time specified in it, or the law will presume that he has abandoned his intention of proceeding on it, and he cannot afterwards move the court for judgment on such motion, and take judgment by…
2Cases cited2 opinions
- Bondurant v. Bank of AlabamaSupreme Court of Alabama · 1845
- Dumas & Co. v. PattersonSupreme Court of Alabama · 1846
3Cited by10 opinions
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- United States Fidelity & Guaranty Co. v. Benson Hardware Co.Supreme Court of Alabama · 1931
- Ex parte BuckleySupreme Court of Alabama · 1875
- W. T. Rawleigh Medical Co. v. HooksAlabama Court of Appeals · 1918
- Dennis v. ChapmanSupreme Court of Alabama · 1851
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