Roberts v. Turner

• Decision Date: 17 April 1928
• Docket Number: 8 Div. 621
• Citation: 22 Ala.App. 433,116 So. 506
• Parties: ROBERTS et al. v. TURNER.
• Court: Alabama Court of Appeals

116 So. 506

22 Ala.App. 433

ROBERTS et al. v. TURNER.

8 Div. 621

Court of Appeals of Alabama

April 17, 1928

Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.

Assumpsit by W.B. Turner against S.S. Roberts, Hayes Hooks, and others. From a judgment for plaintiff, the named defendants appeal. Appeal dismissed.

James C. Roberts, of Florence, for appellants.

O.B. Hill, Jr., and Mitchell & Hughston, all of Florence, for appellee.

SAMFORD, J.

This was a suit by one accommodation indorser against eleven others, all of whom had indorsed the note of "Royal Order of Lyons" and payable to Alabama Trust & Savings Bank. The plaintiff claims that he paid the note which was thereupon transferred to him and upon which he brought suit against his eleven co-indorsers for eleven-twelfths of the face of the note. Judgment by default was entered against eight of the defendants. Three litigated and two appealed, but no summons was issued to defendants, who did not appeal, as is required by section 6143 of the Code of 1923, nor was summons issued from this court before submission of the cause so as to have all parties to the action before this court, so that their rights might be determined in this appeal.

Appellee moves to dismiss the appeal. Under the decisions of the Supreme Court construing the above section of the Code, there is here a want of proper parties at the time of submission and the appeal must be dismissed. Sherrod v. McGruder et al., 209 Ala. 260, 96 So. 78; L. & N.R.R. v. Shikle, 206 Ala. 494, 90 So. 900. The correctness of the opinion in Sherrod v. McGruder, supra, has been recognized in Morrison v. Chambers, 212 Ala. 574, 103 So. 666; Rountree v. Saterfield et al., 211 Ala. 464, 100 So. 751; Henderson v. Henderson, 210 Ala. 73, 97 So. 353; and McCreight v. Porter, 210 Ala. 50, 97 So. 53.

The motion is granted, and the appeal is dismissed.

Appeal dismissed.