Conn v. Sellers

• Decision Date: 18 January 1917
• Docket Number: 1 Div. 889
• Citation: 73 So. 961,198 Ala. 606
• Parties: CONN v. SELLERS.
• Court: Alabama Supreme Court

73 So. 961

198 Ala. 606

CONN v. SELLERS.

1 Div. 889

Supreme Court of Alabama

January 18, 1917

Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.

Suit by John Conn against W.O. Sellers. From a judgment for defendant, plaintiff appeals. Affirmed.

F.E Poole and T.J. Bedsole, both of Grove Hill, for appellant.

William D. Dunn and Q.W. Tucker, both of Grove Hill, for appellee.

SAYRE J.

Conn sued Sellers in a statutory action of ejectment. The parties claimed title from a common source, one Danzey. Plaintiff claimed under an execution sale and a sheriff's deed of date March 18, 1912. This execution was levied February 15 1912; but plaintiff attempted to date his title back to November 5, 1908, by showing that on that date a certificate of the judgment against Danzey, on which the execution had issued, had been filed for registration in the office of the judge of probate. This judgment, such as it was, purported to have been rendered by default in the circuit court of the county on October 28, 1908, in favor of the plaintiff's therein, who were described in the certificate and in both the title and the body of the judgment, which was offered in evidence, as "J. Pollock & Co.," and not otherwise.

A partnership is not a person, either natural or artificial and it cannot, therefore, without the aid of a statute, sue in the firm name. Long v. K.C., M. & B.R.R. Co., 170 Ala. 635, 54 So. 62. In Moore v. Burns & Co., 60 Ala. 269, in which case there was a judgment by default at the suit of "Burns & Co.," the court said that the partners composing the firm had not brought the suit nor made themselves, as parties thereto, amenable to the jurisdiction and orders of the court. It is held, however, that where the defendant goes to trial on a plea to the merits without taking objection to such defect in the lower court, he waives it, and cannot raise the point for the first time in this court. Moore v. Watts, 81 Ala. 261, 2 So. 278. On April 4, 1914, Conn, the plaintiff in this case, as purchaser under the execution in the case of J. Pollock & Co. v Danzey, moved in the circuit court for an amendment nunc pro tunc which would show that the judgment of October 28, 1908, had been rendered at the suit of a copartnership composed of J. Pollock and Leo Pollock, and on October 15, 1914, said motion was granted. In the meantime, that is, on January 2, 1911, Danzey and wife for a valuable consideration "bargained, sold, and conveyed" the land in suit to the defendant Sellers.

If it be conceded that plaintiff had authority of law for his motion for a judgment nunc pro tunc, notwithstanding the courts at common law were not authorized to amend judgments after the close of the term at which they were rendered, and judgments are not therefore amendable at a subsequent term except in pursuance of statutory provisions (Whorley v. M. & C.R.R. Co., 72 Ala. 20), and notwithstanding the statute (section 4140 of the Code) provides...