Chastain v. Armstrong

Decision Date23 February 1888
PartiesCHASTAIN ET AL. v. ARMSTRONG.
CourtAlabama Supreme Court

Appeal from circuit court, Cleburne county; LEROY F. BOX., Judge.

In May 1884, M. L. Armstrong, the appellee, as administratrix of the estate of R. A. Armstrong, deceased, commenced an attachment suit against the appellants, Chastain & Lawrence. An alias attachment was issued from the circuit court on the 5th day of February, 1885, and a levy was made upon two mules belonging to the defendants in attachment. They gave their replevy bond, obligating themselves to have the property forthcoming at the next term of the circuit court held for Cleburne county. At the July term of the circuit court, which was the next term after the replevy bond was given by the defendants, the plaintiff obtained a judgment by default,-the defendants not appearing to put in any defense to the suit. Final judgment was pronounced in the case allowing the plaintiff to recover the full amount claimed in her complaint. In January, 1886, the defendants in the attachment suit filed their petition for a rehearing of the case, setting out, as their principal ground on which to base the petition, that the bond, which they gave to have the mules or property forthcoming at the next term of the circuit court of Cleburne county, specified the first Monday in August, while in truth the court was held on the fourth Monday in the month of July; thereby preventing the petitioners from defending the said suit; and they allege the mere fact that they had a good ground of defense, and that they were without fault. The plaintiffs in the suit demurred to the petition, and assigned as their grounds of demurrer that the petitioner failed to set out any facts tending to show that they had a meritorious defense to the suit, and that, if they had such grounds of defense, they failed to state the facts constituting the said defense; and that the execution of the said replevy bond by the petitioners showed that they had notice that the attachment was made returnable at the next term of the circuit court held for the county of Cleburne; that this was sufficient notice to them of the time of holding the court; and that they did not show sufficient diligence in trying to defend the suit. The circuit court sustained the demurrer to the petition, and dismissed it, to which ruling of the court the petitioners excepted, and appealed to this court. When the case was called for trial in this court, the appellants moved the court to grant them a writ of mandamus. The ruling of the circuit court upon the petition of the appellants is now assigned as error in connection with the application for the writ of mandamus.

Knox & Ellis and Kelly & Smith, for appellants.

Feagin & Wilkinson, for appellee.

SOMERVILLE J.

The judge refused to grant the application for rehearing under the statute (Code 1886, §§ 2872-2880) during the vacation sustaining a demurrer to the petition of the defendants in the judgment. This not being a final judgment of any court from which an appeal would lie, but a mere ruling of the judge out of term-time, we may concede that the appropriate remedy of the petitioners to correct the alleged error of the ruling would be by mandamus. O'Neal v. Kelly, 72 Ala. 559. It does not fall within the class of remedial writs, mentioned in section 3616, Code 1886, which authorizes an appeal from the judgment of judges of the circuit and city courts, rendered...

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19 cases
  • Little v. Peevy, 1 Div. 62.
    • United States
    • Supreme Court of Alabama
    • June 8, 1939
    ...... Union Indemnity Co. v. Goodman, 225 Ala. 499, 144. So. 108; Ex parte Wallace, 60 Ala. 267; Dunklin v. Wilson, 64 Ala. 162, 168; Chastain & Lawrence v. Armstrong, 85 Ala. 215, 217, 3 So. 788; 34 C.J. 489. . . It was. recently indicated by this court that a judgment ......
  • National City Bank of St. Louis v. Stupp Bros. Bridge & Iron Co.
    • United States
    • United States State Supreme Court of Mississippi
    • June 13, 1927
    ...... forthcoming bond by appellants is an appearance. Richard. v. Mooney, 39 Miss. 357; Wilkinson v. Patterson, 6. How. (Miss.) 103; Chastain v. Armstrong, 85. Ala. 215; Peebles v. Weir, 60 Ala. 413, 416;. Cincinnati v. Pless, 60 S.E. 8; Arcadia Bank v. Johnson, 130 La. 288, 57 So. 930. ......
  • Britton v. Goodman
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 5, 1920
    ...which the writ issued, their acts should be held as having the effect of a general appearance. Peebles v. Weir, 60 Ala. 413; Chastain v. Armstrong, 85 Ala. 215, 3 South. 788; Shields v. Barden, 6 Ark. 459; Cole v. Reilly, 28 Ga. 431; Brenner v. Moyer, 98 Pa. 274;Butcher v. Cappon & Bertsch ......
  • Ex parte Tucker
    • United States
    • Supreme Court of Alabama
    • November 9, 1922
    ...... and gave to the trial court the same jurisdiction over his. person. Peebles v. Weir, 60 Ala. 413; Chastain. v. Armstrong, 85 Ala. 215, 3 So. 788; Oliver v. Kinney, 173 Ala. 593, 56 So. 203. It made him "a. party to the suit" (Peebles v. Weir, supra), ......
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