May v. Clanton

Decision Date14 December 1922
Docket Number8 Div. 488.
Citation95 So. 30,208 Ala. 588
CourtAlabama Supreme Court

Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.

Action by W. L. Clanton against J. V. May and the National Surety Company for damages for the wrongful taking of an automobile. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under section 6, p. 450, Acts 1911 Affirmed.

Gardner J., dissenting.

Wert &amp Hutson, of Decatur, for appellants.

Eyster & Eyster, of Albany, for appellee.


Plaintiff (appellee) stated his cause of action in several different counts. He sought to recover of the sheriff and his official bondsmen damages for taking an automobile, the property of plaintiff, under process against the Home Steam Laundry. This process, an execution, had issued in a cause entitled H. & O. Reno, a partnership composed of Harry D. and Harry O. Reno, versus Home Steam Laundry; defendant in that cause not being otherwise described in the summons and complaint or judgment. The service in that cause was shown by the sheriff's return indorsed on the summons as follows:

"I have executed the within by handing a copy of the same to Home Steam Laundry, served on Walter L. Clanton, manager, this 23d day of February, 1920. J. V. May, Sheriff, by T. W. McGuthra, Deputy Sheriff."

The record of that cause showed a judgment by default. On the trial of the pending cause the court held the judgment in the former cause void and gave the general charge for plaintiff, leaving the jury to assess damages.

We have quoted the sheriff's return in order that appellant may have the record to show a full statement of his case; but the court is of opinion that it was not for the sheriff to determine the capacity in which the so-called defendant was sued, or by his return to give authority or direction to the pleadings in the cause. Ferrell v. Ross, 200 Ala. 90, 75 So. 466.

The record of the former action showed no judgment against the plaintiff in this. Plaintiff was not named as a defendant and there could be no judgment against him. This results, we think, from familiar principles. Had the former suit been brought against a suable entity, perhaps parol evidence would have been admissible to show his identity with this plaintiff. Tarleton v. Pollard, 25 Ala. 300, 60 Am Dec. 515. But it does not appear that Home Steam Laundry was a suable entity. Home Steam...

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3 cases
  • Hughes v. Cox
    • United States
    • Alabama Supreme Court
    • June 12, 1992
    ...So.2d 1173 (Ala.1978). Hughes contends that the trial court lacked personal jurisdiction over her and further argues that May v. Clanton, 208 Ala. 588, 95 So. 30 (1922), requires this Court to hold that, as a matter of law, the default judgment entered against Hughes Realty was void and was......
  • Jerry Martin & Associates, Inc. v. Don's Westland Bulk
    • United States
    • Montana Supreme Court
    • November 17, 1994
    ...jurisdiction over her, and therefore, the judgment was void. Hughes relied on a prior decision by the Alabama Court in May v. Clanton (1922), 208 Ala. 588, 95 So. 30, in which the court held that a judgment entered against the trade name of a sole proprietorship cannot be enforced by execut......
  • National Life & Accident Ins. Co. v. Saffold
    • United States
    • Alabama Supreme Court
    • November 10, 1932
    ... ... Hemphill (Tex. Com. App.) 237 S.W. 550, 20 A. L. R. 984 ... When a ... contract is thus made in an assumed name, the person so named ... may be sued in his true name on such contract. 45 Corpus ... Juris, 377; Carlisle v. People's Bank, 122 Ala ... 446, 26 So. 115; May v. Clanton, 208 Ala. 588, 95 ... So. 30; note, 20 A. L. R. 993, et seq.; 45 A. L. R. 200, et ... It is ... true that, if the name of a party to a contract is ... incorrectly stated, so that it is not the true name of such ... person, nor that by which he is known or called (Noble ... v. State, ... ...

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