Strickland v. Wedgeworth

• Decision Date: 23 January 1908
• Citation: 45 So. 653,154 Ala. 654
• Parties: STRICKLAND v. WEDGEWORTH ET AL.
• Court: Alabama Supreme Court

45 So. 653

154 Ala. 654

STRICKLAND v. WEDGEWORTH ET AL.

Supreme Court of Alabama

January 23, 1908

Rehearing Denied Feb. 16, 1908.

Appeal from Circuit Court, Hale County; B. M. Miller, Judge.

Action by James L. Strickland against W. M. Wedgeworth and others. From an order discontinuing the cause, plaintiff appeals. Reversed and remanded.

Tyson C.J., dissenting.

The appellant sued the appellees jointly for an assault and battery committed on him. When the case was called for trial and the court had disposed of several motions to strike and demurrers to the complaint, defendants all filed pleas to the complaint setting up a common defense. After this, without assigning any reason, the plaintiff by motion discontinued as to the defendant Duggar. Thereupon the defendants filed their motion in writing, setting up that all the defendants had been regularly served with process, and that the cause was at the time at issue on pleas filed by the defendant, and praying the court to enter a discontinuance as to all the defendants, for that plaintiff had dismissed his case voluntarily and without sufficient cause as to the defendant Duggar. The court granted the motion, and entered the discontinuance as to the other defendants.

Henry A. Jones and De Graffenried & Evins, for appellant.

Thomas E. Knight, for appellees.

DENSON J.

It is a subject of express decision by this court, and we believe it is the universal rule, that in actions of this nature--ex delicto actions--the plaintiff may discontinue as to one or more defendants, and maintain his action against the remaining defendants, without discontinuing the entire action. Slade v. Street, 77 Ala. 576; Montgomery Gaslight Co. v. Montgomery & Eufaula Railway Co., 86 Ala. 372, 5 So. 735, and authorities there cited; Lovelace v. Miller (Ala.) 43 So. 735; 6 Ency. Pl. & Pr. 863, 864; 14 Cyc. 411 (F), and authorities cited in notes to the text. This common-law rule prevails, notwithstanding the statute (section 42, Code 1896), which authorizes a discontinuance to be entered as to parties defendant who are not served. It was expressly held in the case cited from 86 Ala. 372, 5 So. 735, that it was not intended by the enactment of this statute to change the rule as applicable to actions ex delicto.

But the defendants (appellees) contend that the case of Torrey v Forbes, 94 Ala. 135, 10 So. 320, is decisive of the question at issue in their favor. It must be conceded that the fifth paragraph of the opinion does seem to support appellees' contention; but it will be discovered that what is said in that paragraph on the subject here in judgment was not...