Burdeshaw v. Comer

• Decision Date: 14 November 1895
• Citation: 108 Ala. 617,18 So. 556
• Parties: BURDESHAW ET AL. v. COMER ET AL.
• Court: Alabama Supreme Court

18 So. 556

108 Ala. 617

BURDESHAW ET AL. v. COMER ET AL.

Supreme Court of Alabama

November 14, 1895

Appeal from circuit court, Dale county; J. M. Carmichal, Judge.

Action by H. M. Comer & Co. against P. L. Burdeshaw and another. Judgment was entered for plaintiffs, and from an order granting a motion to amend the judgment entry nunc pro tunc defendants appeal. Affirmed.

T. M Espy, for appellants.

H. L Martin, for appellees.

HEAD J.

The appeal is prosecuted from the judgment of the circuit court amending the judgment entry nunc pro tunc so as to show a recovery by the plaintiffs against O. M. Hill and P. L Burdeshaw, as individuals. The objection urged against the action of the lower court is that the suit was really against P. L. Burdeshaw & Co. as a partnership, and not against said copartners. The action was begun by attachment , which issued upon an affidavit setting forth that P. L. Burdeshaw & Co. composed of P. L. Burdenshaw, O. M. Hill, and John Burdeshaw were jointly indebted to the plaintiffs, and the writ was directed both against the partnership and the individuals. Levy was made upon the property of O. M. Hill, and he executed a forthcoming bond. We may suppose from notices and returns of service upon his administratrix that John Burdeshaw was dead when the suit was instituted, or that he died shortly afterwards. At all events, no further notice was taken of him, and the complaint filed at the return term contained a caption showing "P. L. Burdeshaw, O. M. Hill, a partnership composed of P. L. Burdeshaw and O. M. Hill," as the defendants. The body of the complaint, under this caption, claimed of the "defendants" a certain sum of money. On the same day on which the complaint was filed, O. M. Hill and P. M. Burdeshaw, describing themselves as the "defendants," interposed a plea to the jurisdiction of the court. There was an amendment of the complaint, by adding another count, in which further claim of the "defendants" was made, and thereupon attorneys, subscribing themselves as for the "defendants," filed a demurrer to the complaint as amended. No ruling upon the plea to the jurisdiction nor upon the demurrer appears to have been invoked; and on March 30, 1893, more than a year after the beginning of the suit, there was a final judgment. The entry under the caption "H. M. Comer v. P. L. Burdeshaw" shows a judgment nil dicit in favor of the "plaintiff" against the "defendant,"...