Plunkett v. Dendy

Citation197 Ala. 262,72 So. 525
Decision Date30 June 1916
Docket Number6 Div. 306
PartiesPLUNKETT v. DENDY et al.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.

Action by W.A. Plunkett against E.G. Dendy and others. From a judgment of discontinuance, the plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449 Act of April 18, 1911. Reversed and remanded.

A.A Griffith, of Cullman, and Callahan & Harris, of Decatur, for appellant.

W.E James and George H. Parker, both of Cullman, and John C Eyster, of New Decatur, for appellees.

THOMAS J.

The judgment from which the appeal is taken, after setting out the several interlocutory orders made by the court, concludes as follows:

"Thereupon the defendant E.G. Dendy moves the court for a discontinuance in this cause, which motion being submitted to the court and duly considered and understood by the court, it is ordered and adjudged by the court that said motion be and hereby is granted. It is further ordered and adjudged by the court that the defendants have and recover of the plaintiff W.A. Plunkett the costs of this suit in this behalf expended, for which let execution issue."

Is this a final judgment that will support an appeal? It has long been declared by this court that if the judgment falls short of being a finding and adjudication, complete and certain, of the court, but is in effect a memorandum which indicates no more than that judgment was rendered, it cannot be sustained as the final consideration and determination of the court. Tombeckbee v. Godbold, 3 Stew. 240, 20 Am.Dec. 80; Hinson v. Wall, 20 Ala. 298; Speed v. Cocke, 57 Ala. 209; Bell et al. v. Otts, 101 Ala. 186, 13 So. 43, 46 Am.St.Rep. 117; 1 Freeman on Judgments (4th Ed.) § 2. In the following cases minute memoranda were held not final judgments that would support an appeal: Speed et al. v. Cocke, supra; Bell et al. v. Otts, supra; Barnemann v. Morrison, 132 Ala. 638, 32 So. 649; Chamberlain v. M.F. & O. Co., 137 Ala. 187, 33 So. 822; Wallace v. Crosthwait, 139 Ala. 529, 36 So. 622; Clarady v. Abraham, 174 Ala. 130, 56 So. 720. In Moore v. N.C. & St. L. Ry., 137 Ala. 495, 34 So. 617, the following was held a final judgment:

"On this, the 18th day of November, 1902, come the parties by attorney, and the plaintiff demurs to defendant's pleas. It is considered and adjudged by the court that the demurrers be, and the same are hereby, overruled. Issue being joined, come a jury of good and lawful men, to wit, 'W.H. Scarbrough and 11 others, who, being duly sworn and charged according to law, upon their oaths do say: "We the jury find in favor of the defendant." It is therefore considered by the court that the jury go hence and recover of the plaintiff the costs in this behalf expended, for which let execution issue. It is further considered by the court that the plaintiff have 30 days in which to prepare and have signed his bill of exceptions.' "

In Jasper Merc. Paper Co. v. O'Rear, 112 Ala. 247, 20 So. 583, it is said:

"The mere copying into what purports or was intended to be a judgment entry of memoranda made on the docket by the judge, such as, 'plaintiff's demurrer to the fourth, fifth, and sixth pleas overruled, and demurrer to other pleas sustained,' is not sufficient as a judgment of the court upon the demurrers. There should, in all cases, be a formal entry of the submission on demurrers to specified pleadings, a recital of consideration thereof by the court, and a formal adjudication, such as, 'It is therefore, considered and adjudged by the court that the demurrers, etc., be, and they are hereby, overruled,' or sustained, as the case may be."

In Ex parte Hendree et al., 49 Ala. 360, it was held that, where a cause is dismissed and final judgment is rendered against one of the parties for costs, an appeal will lie. Davis v. McColloch et al., 191 Ala. 520, 67 So. 701.

While the judgment in the case was not final as between the parties on the issue presented, it was final in that it supports an appeal. The plaintiff had demurred to the defendants' motion to vacate the attachment levy, and the court overruled the demurrer; to his answer to the motion of defendants the court sustained the demurrer, and allowed plaintiff to amend the affidavit on which the attachment issued. The plaintiff "moved the court to amend the attachment bond," which motion was denied. Thereupon the defendant, E.G. Dendy, moved the court "for a discontinuance in this cause," which motion was submitted and duly considered, whereupon it was ordered and adjudged by the court that said motion for a discontinuance "be and the same is hereby granted," with costs, for which execution might issue. It is thus clear that the plaintiff could not proceed further in the lower court, and that the judgment entry discloses the submission, consideration, and final decision of the right to further procedure by plaintiff aganst the defendants, and that the plaintiff was taxed with the costs there incurred. A consideration of the several authorities pointed out above shows them to sustain the finality of this judgment to support an appeal. This is in consonance with the authorities collected and the conclusion reached in De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265.

The plaintiff's suit by attachment was against the tenant in chief, E.G. Dendy, and his subtenants, Tom Dendy, Lee Dendy, and Gaines Williams and John Teague. The affidavit on which the writ issued recites, among other things, that:

The "said E.G. Dendy is the tenant of W.A. Plunkett in chief, and Tom Dendy, Lee Dendy, Gaines Williams, and John Teague are the subtenants of the said E.G. Dendy, and they owe the said W.A. Plunkett for rent and advances past due, and they have failed to pay the same after demand made, and that there is good cause to believe that the tenant in chief and his subtenants are about to remove from the premises, or otherwise dispose of a part of the crops, without paying such rent and advances, and without consent of the landlord, the said W.A. Plunkett, and that this attachment is not sued out for the purpose of vexing or harassing the defendants."

The writ directed the sheriff to attach, of the estate of the defendants, "so much," to wit:

"All the crops of corn and cotton and other produce raised by E.G. Dendy, tenant in chief, and Tom Dendy, Lee Dendy, Gaines Williams, and John Teague, subtenants of the said E.G. Dendy, which said crops were raised on the following lands" [describing them], etc.

The crop so levied upon was replevied by the defendants in attachment.

On the trial, defendant E.G. Dendy moved the court to quash said writ of attachment on the ground, among others, that it affirmatively appeared that the attachment was erroneously issued against the defendant, E.G. Dendy, and his subtenants. Defendants, the four named subtenants, moved to vacate the levy and quash the attachment writ because the property levied upon was grown upon lands sublet to them by E.G. Dendy, and the crop of E.G. Dendy, the tenant in chief, had not been exhausted to satisfy the alleged rent due the plaintiff. By way of answer to the subtenant defendants' motion, the plaintiff said that the tenant in chief did not make on the lands of the plaintiff a crop sufficient to satisfy plaintiff's demand, and that it was necessary to levy upon the crops of the said subtenants in order to satisfy plaintiff's demand. The court sustained defendants' demurrer to the plaintiff's answer to the subtenants' motion pointing out the failure to allege such exhaustion of the crops of the tenant in chief, in the collection of his claim for rent and advances. On account of such adverse ruling, plaintiff amended the attachment affidavit by striking out the names of the subtenants, and moved the court for a like amendment of the attachment writ to conform to the amended attachment affidavit, which motion of plaintiff the court overruled. There being no evidence introduced, the defendant E.G. Dendy moved the court for a discontinuance, which was granted. The plaintiff duly excepted to this action of the court, and takes this appeal.

The motion to vacate being timely, if the subtenants were improperly joined as defendants in attachment, was such improper joinder an amendable defect? Appellees contend that, inasmuch as the action was ex contractu against all the defendants jointly, and all the defendants were properly served and brought into court, the attachment affidavit, bond, and sheriff's return were not amendable, and the attempted amendment by striking out the subtenants worked a discontinuance. That is to say, an amendment striking out one of the parties defendant, without the introduction of testimony showing the necessity for such action, by reason of some personal defense applicable to that defendant, and inapplicable to the others, will operate as a discontinuance of the entire cause. The statutory provision for levy on the crops of subtenants, when an attachment or other process is sued out by the superior landlord or his assignee, for the enforcement of the lien of the landlord, requires that the crop of the tenant in chief must be first exhausted before levy is made on the crop of the subtenant, but provides that if the tenant in chief makes no crop, or if the crop made by him is not sufficient to satisfy the plaintiff's demand, then a sufficient amount of the crop of the subtenant may be levied on to satisfy the deficiency; and any levy made in violation of this statute may be vacated on motion, at the first term of the court thereafter. Code 1907, § 4744. This statutory provision was incorporated in the Code of 1876, and has been construed by this court.

An improvident attachment against, or levy upon the crop of the subtenant may be...

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