Evans Marble Co. v. D.J. McDonald & Co.
| Decision Date | 20 December 1904 |
| Citation | 37 So. 830,142 Ala. 130 |
| Court | Alabama Supreme Court |
| Parties | EVANS MARBLE CO. v. D. J. MCDONALD & CO. ET AL. |
Appeal from Circuit Court, Mobile County; Wm. S. Anderson, Judge.
Action by the Evans Marble Company against D. J. McDonald & Co. and others. From a judgment granting a discontinuance, plaintiff appeals. Affirmed.
Each of the several defendants was served with process. Upon the case coming on to be heard, the plaintiff amended its complaint by striking out the name of the D. J. McDonald Stone Company as a party defendant. This action was taken before the introduction of any testimony showing any personal defense to the D. J. McDonald Stone Company. Immediately thereupon the defendants moved the court for a discontinuance of the cause on account of the voluntary discontinuance by the plaintiff as to the D. J. McDonald Stone Company. The court at first refused this motion, but subsequently reconsidered the matter, and entered a discontinuance in accordance with the motion. Subsequently the plaintiff made a motion for a new trial. The ground for the motion for a new trial was that the discontinuance ought not to have been granted because the court at first refused to order the discontinuance, and thereby permitted the plaintiff to introduce his testimony and that by proceeding with the trial when the court compelled them to do so the defendants waived their right to a discontinuance.
Rooch & McMillan, for appellants.
Gregory L. & H. T. Smith, for appellee.
The complaint counts upon a joint cause of action against all the defendants named in it. The record shows that each of the several defendants was served with process. Plaintiff without sufficient reason therefor, amended its complaint by striking out one of the defendants. Thereupon the other defendants moved the court to enter a discontinuance of the entire action. The court erroneously refused the motion. Jones v. Englehardt, 78 Ala. 506, and cases cited. However, on a subsequent day of the term, after plaintiff had introduced evidence tending to show an improper joinder of the defendant discharged by the amendment, and a liability on the part of those who had claimed the discontinuance, the court, acting upon another motion made by them, discontinued the action. While it is true the statute of amendments authorizes the striking out of a party defendant who has been served with process (section 2331, Code 1896), it has...
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Crawford v. Mills
... ... 135, 10 So. 320; Hayes ... v. Dunn, 136 Ala. 528, 34 So. 944; Evans Marble Co ... v. McDonald & Co., 142 Ala. 130, 37 So. 830; Ashby ... ...
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Plunkett v. Dendy
...or substitute an entirely new cause of action, or to make an entire change of parties." 131 Ala. 411, 30 So. 776. And in Evans Marble Co. v. McDonald & Co., supra, the court "It is true the statute of amendments authorizes the striking out of a party defendant who has been served with proce......
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H.C. Schrader Co. v. A.Z. Bailey Grocery Co.
... ... on appeal. Evans Marble Co. v. McDonald, 142 Ala ... 130, 37 [15 Ala.App. 650] South ... ...
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Beecher v. Henderson
...arguments of counsel on each side, and among other things Mr. Ward read to the court the following from the case of Evans Marble Co. v. McDonald & Co., 142 Ala. 133 [: 'The effect of the amendment was discontinue the case--to put an end to it. The parties were thereby out of court. Curtis v......