Carswell v. B.F. Kay & Son

• Decision Date: 15 April 1926
• Docket Number: 8 Div. 846
• Citation: 214 Ala. 619,108 So. 518
• Parties: CARSWELL v. B.F. KAY & SON.
• Court: Alabama Supreme Court

108 So. 518

214 Ala. 619

CARSWELL v. B.F. KAY & SON.

8 Div. 846

Supreme Court of Alabama

April 15, 1926

Rehearing Denied May 20, 1926

Appeal from Circuit Court, Morgan County; J.E. Horton, Judge.

Action on account by B.F. Kay & Son against F.L. and G.A. Carswell doing business as Carswell & Carswell. From a judgment for plaintiff, defendant F.L. Carswell appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

E.W Godbey, of Decatur, for appellant.

A.J Harris, of Decatur, for appellee.

SAYRE J.

The action was against F.L. Carswell and G.A. Carswell as partners. No service was had on G.A. Carswell. At the trial plaintiff moved to dismiss the suit as against G.A. Carswell but the record discloses no formal action on this motion. The court proceeded to a judgment against the defendant F.L. Carswell, thus, in effect, treating the case as if brought against him alone. This was irregular. The judgment should have disposed of the cause as against G.A. Carswell; but the practical results were the same. There is nothing of which appellant defendant may complain, nor any ground of reversal. Code 1923, § 5718; Oliver v. Hutto, 5 Ala. 211.

Something is said in the brief concerning, as we understand, the allocation of costs. But, as we have noted, there was no service against the defendant G.A. Carswell, and in the matter of the preparation of a final record of the proceedings and judgment in the cause the difference, negligible at worst, between the cost of the record as it is and as it would have been, had the court by its judgment formally eliminated the absent defendant, will operate to the advantage of appellant, if he is made to pay.

The case was tried by the court without the intervention of a jury. The goods, money, and merchandise, for the price or value of which the suit was brought, had been furnished directly to G.A. Carswell or upon his order. Plaintiff sought to bind defendant F.L. Carswell as a partner. This brought on the main question whether there was the partnership alleged a question of fact as to which the evidence was in conflict, presenting a case calling emphatically and inescapably for the application of that rule, which concedes to the triors of fact who heard the witnesses an opportunity to know the truth better than this court can have. Malone v. Reynolds, 213 Ala. 681, 105 So. 895; Fleming v. Moore, 213 Ala. 592, 105 So. 680, and cases cited. There could be no statement against the conclusion rendered by the trial judge more searching or forcible than that found in appellant's...