Davis v. McCary

• Decision Date: 27 July 1893
• Citation: 100 Ala. 545,13 So. 665
• Parties: DAVIS v. MCCARY ET AL.
• Court: Alabama Supreme Court

13 So. 665

100 Ala. 545

DAVIS v. MCCARY ET AL.

Supreme Court of Alabama

July 27, 1893

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

Action by McCary & Dean against T. A. Davis on a promissory note. From a judgment for plaintiffs, defendant appeals. Affirmed.

This suit was brought on July 9, 1892, and on that day the following summons was issued: "You are hereby commanded to summon T. A. Davis to appear before the circuit court of Tuscaloosa county, at the place of holding the same, then and there to answer, plead, or demur to the complaint hereto annexed, of McCary & Dean. You are required to execute this process instanter, and to return the same immediately upon the execution thereof." This summons was executed on September 6, 1892, and on November 22, 1892, the following judgment entry was made: "Came the plaintiff by attorney, and the defendant, being called, came not, but made default. It is therefore considered by the court that plff have and recover of the defendant the sum of $156 11/100, and the costs in this behalf expended, for which execution may issue," etc.

J. J Mayfield, for appellant.

COLEMAN J.

The judgment appealed from was rendered by default. The first assignment of error is as to the sufficiency of the summons. The defendant was summoned "to appear before the circuit court of Tuscaloosa county, at the place of holding the same," etc. The objection is that the summons does not say "at the next term," according to the form of the Code. It is better to follow the prescribed forms, but the omission of the words "next term" does not cause a defect of such character as to wholly vitiate the summons. Section 2662 of the Code prescribes that, "when the summons is issued less than three days before the term of the court next thereafter, it must be made returnable to the next succeeding term," and by section 2663 of the Code "the return day of the summons is the first day of the court to which it is returnable." The law fixed the term to which the summons was returnable.

The second assignment of error is that the amount of the judgment was expressed in figures preceded by the dollar mark, as follows: $135.99,-instead of being written out. At an early day, in the case of Tankersley v. Silburn, Minor (Ala.) 185, it was said: "The mark used to denote dollars has obtained general currency, *** and conveys the idea of dollars as distinctly as the word 'dollar' itse...