Farmers' Oil & Mfg. Co. v. Melton & Stuart
| Decision Date | 07 April 1909 |
| Citation | 49 So. 225,159 Ala. 469 |
| Parties | FARMERS' OIL & MFG. CO. v. MELTON & STUART. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Wilcox County; Thomas L. Cochran, Special Judge.
Action by the Farmers' Oil & Manufacturing Company against Melton & Stuart. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.
N. D Godbold, for appellant.
J. N Miller and J. M. Bonner, for appellee.
There is but one question involved in this appeal--whether there was a discontinuance of the cause of action. The facts seem to be undisputed, and are as follows: The plaintiff lodged with the clerk of the circuit court of Wilcox county the summons and complaint on the 3d day of April, 1907, and the clerk on the same day signed the summons and placed the summons and complaint, or copies thereof, in the hands of the sheriff of that county. The summons was not executed before the spring term of the circuit court, but was handed back to the clerk by the sheriff, without a return thereon, after the expiration of the time for service. The cause was never docketed at the spring term, 1907, and therefore no order was asked or taken at the spring term of the court. On the 31st day of August, 1907, the clerk, acting under direction of plaintiff's attorney, took the summons and complaint originally filed with him, erased the date "April 3 1907," and inserted in lieu thereof the date "August 31, 1907," and refiled the paper and signed the summons on the 31st day of August, 1907, and placed the same, or copies thereof in the sheriff's hands for service on defendant on the same day; and the sheriff executed the writ on the 5th day of September, 1907, and returned the same to the circuit court as of that date. The summons and complaint as last issued were placed upon the docket. The defendant had entered no appearance upon the appearance docket by himself or counsel, but had had witnesses subp naed at the fall term, and after having the witnesses subp naed, on the 29th day of October, 1907, he entered a special appearance for the purpose only of moving to dismiss the cause for the reason that there had been a discontinuance by failure to have the cause continued at the spring term, or to have an alias summons and complaint issued at the fall term, returnable at the next term. The cause was heard upon this motion to dismiss because of a discontinuance, and upon the facts above set forth, which were undisputed, the court granted the motion, and entered an order on the minutes of the court dismissing the cause and taxing the plaintiff with the costs. From this judgment the plaintiff appeals, and assigns as error the judgment and order of the court dismissing the action and taxing the plaintiff with the costs.
The trial court was clearly in error in dismissing this cause of action. It is unnecessary to decide whether or not there had been a discontinuance of the cause of action brought on the 3d day of April, 1907, for the reason that it would be error for the court to strike the cause of action brought on the 31st day of August, 1907, on the ground of discontinuance whether there had been a discontinuance before or not. If there had been a discontinuance of the first action brought, plaintiff had a right to bring the second on the 31st day of August, 1907. If there had not been a discontinuance, there were two causes of action pending at the same time, in...
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Denson v. Alabama Fuel & Iron Co.
... ... Duffee, 1 Ala. 433; Farmers' Oil Mfg. Co. v ... Melton, 159 Ala. 469, 49 So. 225; Greenwood v ... ...
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