Hayes v. Dunn

• Decision Date: 28 February 1903
• Citation: 34 So. 944,136 Ala. 528
• Parties: HAYES v. DUNN. [a1]
• Court: Alabama Supreme Court

34 So. 944

136 Ala. 528

HAYES v. DUNN. ^[a1]

Supreme Court of Alabama

February 28, 1903

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Action by Clarke Hayes against E. J. Dunn. From a judgment dismissing the cause, plaintiff appeals. Reversed.

John W Tomlinson, for appellant.

George A. Evans, for appellee.

HARALSON J.

The complaint filed on the 6th February, 1894, shows the action to be on a promissory note by defendants to plaintiff for $2,500. The style of the case in the caption of the complaint is, "Clarke Hayes, plaintiff, v. Thos. H. Dunn, Fred C Dunn, Evans J. Dunn, and Lloyd O. Gold, as partners, doing business under the firm name and style of Dunn Bros. & Co. and Dunn Brothers, and Dunn Brothers & Co., and Thos. H Dunn, Fred C. Dunn, Evans J. Dunn, partners doing business under the firm name and style [of] Dunn Brothers, defendants." The style of the case as employed elsewhere in the proceedings is substantially the same. It thus appears that the two firms, as well as the individuals named, are parties defendant.

Process was duly served on the firms of Dunn Brothers, and on Dunn Brothers & Co., and on E. J. Dunn and F. C. Dunn. Thos. H.

Dunn and L. O. Gold were returned not found.

F. C. Dunn and Dunn Brothers & Co. pleaded non est factum.

E. J. Dunn and Dunn Brothers filed joint pleas of the general issue, material alteration of the note, and set-off.

In this state of the case, by leave of the court, the plaintiff, on the 10th of February, 1898, filed an amended complaint, striking out the names of all the parties defendant, except E. J. Dunn, and by substituting in lieu of the original complaint, a complaint on the same promissory note, against E. J. Dunn alone. At the time this amendment was made, all the defendants were parties except Thos. H. Dunn and L. O. Gold, who were not served, and the pleas filed by the other defendants had not been acted on.

On the 2d of June, 1898, as the record shows, the parties came by their attorneys, and upon their motion it was ordered by the court that the cause be continued until the next term of the court.

On the 11th of January, 1899, as is again recited in the record, the parties came and upon their motion and by consent, it was ordered that the cause be continued until the succeeding term.

On the 1st day of December, 1899, the defendant E. J. Dunn moved the court to enter a discontinuance of the cause on grounds, substantially, that suit had been brought against parties defendant who had been served, and it had been discontinued as to all of them except himself.

On the 14th January, 1901, the cause having been regularly reached for trial, and no one appearing to prosecute the same, it was by the court dismissed for the want of prosecution. On the 25th of the same month, the plaintiff, for grounds set out in his motion, moved the court to reinstate the cause on the docket, and the motion having been continued until the 17th of June, 1901, said motion was granted and the cause reinstated. On the same day, the defendant renewed his motion to dismiss the cause, because the same had been discontinued by the plaintiff by an amendment of his complaint striking out all the defendants except himself. This motion, as is shown by the record, was heard and after consideration granted, and the cause was dismissed out of cour...