Beecher v. Henderson

• Decision Date: 18 April 1912
• Parties: BEECHER v. HENDERSON ET AL.
• Court: Alabama Court of Appeals

58 So. 805

4 Ala.App. 543

BEECHER v. HENDERSON ET AL.

Court of Appeals of Alabama

April 18, 1912

Rehearing Denied May 4, 1912.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Mrs. S. P. Beecher against Arlington L. Henderson and others. From a judgment declaring a discontinuance, plaintiff appeals. Affirmed.

Hugo L. Black, of Birmingham, for appellant.

Wallace T. Ward, of Birmingham, for appellees.

PELHAM J.

The appellant's motion to establish a bill of exceptions in this case was passed upon favorably to the movant by the Supreme Court where the case was then pending. Subsequently it was submitted on briefs in that court, and afterwards upon the establishment of the Court of Appeals, was transferred to this court.

The court below, on motion of the appellees, discontinued the suit brought by the appellant in that court against the appellees as joint obligors on a constable's bond.

The statement of the presiding judge relating to the proceedings had in passing upon and granting appellees' motion for a discontinuance, made at the instance of both parties and incorporated in the bill of exceptions, is as follows "On the 27th day of January, 1909, the case was called for trial and both parties, through their attorneys announced ready. The case was submitted upon demurrers to counts 1 and 2 of the complaint, and the same were by the court sustained. Mr. Black, attorney for plaintiff, thereupon asked leave to amend the complaint by separate paper, which as I recollect it, he held in his hand and handed it to the court there and there for examination; the same having already been prepared. The court allowed the amendment, then and there entering upon the docket the following 'Complaint amended by separate paper filed.' Mr. Ward, attorney for defendants (except Arlington L. Henderson), then asked, 'Is the amendment allowed?' to which I, as presiding judge, replied, 'Yes.' Mr. Ward then repeated the question, 'Now, then, the amendment has been allowed?' I, as presiding judge, replied, 'Yes, the amendment has been allowed.' Mr. Ward then moved the court to enter a discontinuance of the cause which was resisted by Mr. Black. I heard arguments of counsel on each side, and among other things Mr. Ward read to the court the following from the case of Evans Marble Co. v. McDonald & Co., 142 Ala. 133 [: 'The effect of the amendment was to discontinue the case--to put an end to it. The parties were thereby out of court. Curtis v. Gaines, 46 Ala. 455, 459. This being true, unless the discontinuance was waived by the defendants, the court was without jurisdiction to proceed with a hearing of the cause.' The foregoing enunciation of the law being at variance with my understanding, I announced that I desired time to further examine the question, and that I would take the matter under advisement until the next day, Mr. Black then calling the court's attention to the fact that the amendment had not been marked filed, and I then and there made the following bench notes, so that neither party would be prejudiced: 'Matter taken under advisement.' At this time neither the motion for discontinuance nor the amendment has been marked filed, but both had been presented to the court. After motion to discontinue, plaintiff asked leave to withdraw said amendment. My recollection is thaT i read said bench notes then and there in open court, mr. black insisting that the matter was still under the control of the court, and Mr. Ward insisting that the court was without further power in the premises. On the morning of January 28, 1909 (and I believe as soon as court convened), before the court had announced its conclusions, Mr. Black offered proof to show that R. T. Hudson died September 3, 1908, and also moved the court to require W. T. Ward to show his authority to appear for Hudson. I then stated that, while my own opinion did not coincide with that of the Supreme Court, still I felt it my duty to follow the Supreme Court's decision, and that I could not otherwise construe said decision than that the trial court was then without jurisdiction to proceed in the cause. I then and there made and entered the following bench notes: 'Before the court had ruled on motion to discontinue, plaintiff offered to amend count 2 of the complaint, and also offered proof showing that R. T. Hudson died September 3, 1908, which the court refused upon the grounds that it had no jurisdiction.' "

The suit was instituted by appellant against all of the several defendants named in the complaint jointly, seeking to recover damages from the defendants as joint obligors on a constable's bond for an alleged trespass committed by the constable, and the amendment to the complaint offered by the appellant on January 27, 1909, struck out as parties defendant Arlington L. Henderson and R. T. Hudson. The original complaint was filed July 21, 1908, and on August 24, 1908, W. T. Ward, Esq., a regular practicing attorney at that bar, appeared as an attorney in the cause and filed demurrers to the complaint as attorney for all of the defendants except Arlington L. Henderson. The main question presented for our determination is whether or not the action of the plaintiff in voluntarily striking out R. T. Hudson as one of the joint parties defendant without the necessity for such action being shown, or appearing from the record, worked a discontinuance of the entire cause. Under the rulings of the Supreme Court, there can be but one answer to this question, and that is that a dismissal as to one of such defendants on a joint cause of action constitutes a discontinuance of the action against the remaining defendants. Evans Marble Co. v. McDonald & Co., 142 Ala. 130, 37 So. 830; Mock v. Walker, 42 Ala. 668; Fennell v. Masterson, 43 Ala. 268; Masterson v. Gibson, 56 Ala. 56; Kendall v. Lassiter, 68 Ala. 181; Reynolds v. Simpkins, 67 Ala. 378; Torrey v. Forbes, 94 Ala. 135, 10 So. 320; Hayes v. Dunn, 136 Ala. 528, 34 So. 944; Ashley Brick Co. v. Walker D. G. Co., 151 Ala. 272, 44 So. 96.

That the paper writing containing the amendment was not marked filed by the clerk can avail the appellant nothing. It was brought to the attention of the court while the case was on...