McCreary v. Jones

• Decision Date: 01 March 1892
• Citation: 11 So. 600,96 Ala. 592
• Parties: MCCREARY ET AL. v. JONES ET AL.
• Court: Alabama Supreme Court

11 So. 600

96 Ala. 592

MCCREARY ET AL. v. JONES ET AL.

Supreme Court of Alabama

March 1, 1892

Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.

Action on a detinue bond by George M. Jones and others against J. A McCreary and others. From a judgment for plaintiffs defendants appeal. Affirmed.

Farnham & Crum, for appellants.

John Gamble and Stallworth & Burnett, for appellees.

THORINGTON J.

In November, 1881, G. M. Jones and A. A. Autrey, two of the appellees, purchased from D. J. Anderson four oxen and a timber cart, with the necessary fixtures, to be paid for in timber of a specified quantity and class, to be delivered at a certain place as soon as practicable, the contract being in writing, and by the terms of which a lien on the property sold was reserved in favor of the vendor. The vendees having failed to deliver the timber pursuant to the contract, the vendor brought detinue for the property sold as above stated and after several trials the suit resulted in a verdict for the vendees, or defendants, and judgment for costs in their favor against Anderson. At the commencement of the suit the plaintiff therein entered into a detinue bond, according to the statute, with appellants as sureties thereon, upon the filing of which bond an order or fiat for the seizure of the property was indorsed on the writ of detinue by the clerk. Appellees replevied the property, and it was restored to them by the sheriff. The obligees in the detinue bond, Jones and Autrey, brought this action against Anderson, the principal obligor, and McCreary and Savage, his sureties, for a breach of the bond; the damages claimed being the costs and counsel fees incurred by Jones and Autrey in the detinue suit. The defendants pleaded the general issue and four special pleas. Two of the latter are confined to so much of the complaint as seeks to recover the costs of the detinue suit, and set up as a bar the judgment for costs in said suit in favor of Jones and Autrey, plaintiffs in this suit and defendants in the detinue suit. And the other two special pleas seek to set off the indebtedness from Jones and Autrey to Anderson for the price of the oxen, timber cart, and fixtures sold by him to them pursuant to the written contrac of sale, and which price it is alleged was never paid. The case has been to this court twice before this appeal, (76 Ala. 427, and 2 South. Rep. 211;) but the questions then determined have no bearing on those now presented for our consideration. In what we have to say it will be assumed that D. J. Anderson was a party defendant to this suit, and in that we are borne out by the record. We will state the facts leading to the conclusion, inasmuch as appellees' demurrer is based in part on the contrary assumption. The summons and complaint is returned by the sheriff as executed on the defendants McCreary and Savage, but the return is silent as to D. J. Anderson. There is no order of discontinuance as to Anderson or other notice taken, so far as the record shows, of the want of service on him. His name is mentioned in the body of the summons as one of the defendants sued, and also in the caption to the complaint. In each of the pleas filed his name is the first mentioned in the caption, and the introductory part of each plea is, "Come the defendants," etc. The appeal bond is signed by said Anderson and the other defendants, and recites that the appeal is taken by all the defendants, including Anderson, by name, and the clerk's certificate is to the same effect. Under these circumstances, there can be no doubt that Anderson appeared as a party defendant notwithstanding the failure of the record to show service on him, and such appearance must be held a waiver of the want of service. The two special pleas which set up the judgment against appellant Anderson, for the costs and counsel fees incurred in the detinue suit, as a bar to so much of plaintiffs' demand as consists of said costs and counsel fees, are filed jointly by Anderson and the other defendants, who were not parties...