Ashby Brick Co. v. Ely & Walker Dry Goods Co.

• Decision Date: 04 June 1907
• Citation: 44 So. 96,151 Ala. 272
• Parties: ASHBY BRICK CO. ET AL. v. ELY & WALKER DRY GOODS CO.
• Court: Alabama Supreme Court

44 So. 96

151 Ala. 272

ASHBY BRICK CO. ET AL. v. ELY & WALKER DRY GOODS CO.

Supreme Court of Alabama

June 4, 1907

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by the Ely & Walker Dry Goods Company against the Ashby Brick Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

James L. Davidson, for appellants.

Pugh &amp Marx, for appellee.

HARALSON J.

A general appearance cures defects in service of process, and obviates the necessity of service. Winter v. Rose, 32 Ala. 449; Baker v. Pope, 49 Ala. 415; Wheeler v. Bullard, 6 Port. 352; Hobson v. Emanuel, 8 Port. 442; Owings v. Binford, 80 Ala. 423; B. F. M. v. Wilder, 85 Ala. 593, 5 So. 307.

In actions ex contractu, a discontinuance of a party served, not on account of a defense personal to him, works a discontinuance of the entire cause. 3 Mayfield's Dig. 68 § 3.

An appearance may be made by an attorney, and the entry on the margin of the dockets of the court, of the name of an attorney, opposite the name or names of the parties defendant, is accepted in practice as an appearance for such party or parties. Grigg v. Gilmer, 54 Ala. 430. His appearance is presumptive evidence of his authority to do so. Daughdrill v. Daughdrill, 108 Ala. 321, 19 So. 185.

In the case before us, the suit was instituted on the 4th of April 1905, by the plaintiff, Ely & Walker Dry Goods Company, a corporation, against Ashby Brick Company, G. B. Crowe and J. G. Oakley, on a promissory note made by them payable to the plaintiff.

So far as the transcript shows, no summons was issued to the defendants, or either of them, on the filing of the complaint. On the 20th of April following, after the statement of the names of the parties in the caption, as they appeared in the complaint, and styling them "defendants," appears what purports to be a plea, reciting: "Now comes the defendant and for answer to the complaint in the above stated cause says as follows: First, that it is not indebted to the plaintiff in the manner and form alleged in the complaint. Second, that it denies each and every allegation of the complaint. [ Signed] J. L. Davidson, Attorney for Defendant."

On the 19th of December, for failure of the plaintiff to appear and prosecute, the cause was dismissed for want of prosecution.

On the 26th of December, with a caption of "Ely & Walker Dry Goods Company, Plaintiff, against Ashby Brick Company, a Corporation, et al., Defendant," an agreement was entered into by counsel on each side, signed, "Jas. L. Davidson, Attorney for Ashby Brick Company et al., Defendants," and by the attorneys for plaintiff, that the cause be reinstated on the docket for trial; and later, an order was made and entered by the court, reciting that plaintiff's attorneys were engaged in another court when said cause "was called and dismissed for want of prosecution, and defendants by their attorneys have agreed in writing that said judgment be set aside and the cause reinstated on the docket for trial," etc., and reinstating the cause accordingly.

In the after proceedings the parties defendant were indifferently referred to as "defendant" and "defendants." This difference is regarded as inadvertent clerical error.

The cause came on for trial on October 30, 1906, and the judgment entry contains the caption, "Ely...