Weissinger v. State
Supreme Court of Alabama
Writ of Error to the Circuit Court of Perry. Weissinger and JohnsoN were indicted in the circuit court of Perry for charging and receiving tolls unlawfully on the Cahawba river. Weissinger entered into recognizance with A. B. Moore as surety, binding himself and surety each in the sum of $100 for his appearance, and Johnson in the same manner, with H. Davis as his' surety.
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Writ of Error to the Circuit Court of Perry. Weissinger and JohnsoN were indicted in the circuit court of Perry for charging and receiving tolls unlawfully on the Cahawba river. Weissinger entered into recognizance with A. B. Moore as surety, binding himself and surety each in the sum of $100 for his appearance, and Johnson in the same manner, with H. Davis as his' surety. Having failed to appear, recognizances were estreated, a judgment nisi entered against the sureties as well as the principals, and sci. fas. were ordered. Afterwards, during the same term, both defendants appeared, and the…
1Opinion of the CourtGoldthwaite, J.
1. The statutes which authorize the fee to the attorney, as well as the county tax, speak of suits either as commenced or prosecuted or defended. [Dig. 236; Ib. 575, § 94.] In our judgment, there is no sufficient reason to consider the estreating of a recognizance by a judgment nisi, as a suit either commenced or prosecuted. The judgment nisi is in no sense of the term, process commencing a suit, but is rather the foundation upon which a suit may afterwards be prosecuted by sci. fa. We think it clear the items, both of attorney’s fee and county tax, were improperly taxed, and should have been…
2Cases cited2 opinions
- Briley v. HodgesSupreme Court of Alabama · 1836
- Renfro v. KellySupreme Court of Alabama · 1846
3Cited by2 opinions
- Dent & Magruder v. StateSupreme Court of Alabama · 1868
- Barron v. TartSupreme Court of Alabama · 1851