Strickland v. Wedgeworth

CourtSupreme Court of Alabama
Writing for the CourtDENSON, J.
Citation45 So. 653,154 Ala. 654
Decision Date23 January 1908
PartiesSTRICKLAND v. WEDGEWORTH ET AL.

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...

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5 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...of 1907, and to the effect that a discontinuance as to one defendant did not so operate as to all. See, also, Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653 (ex delicto); Montgomery G.L. Co. v. M. & E.R. Co., 86 Ala. 372, 5 So. 735 (ex delicto); Lovelace v. Miller, 150 Ala. 422, 43 So. ......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...50 So. 293; Supreme Lodge, etc., v. Gustin, 202 Ala. 246, 80 So. 84; Wright v. Sample, 162 Ala. 222, 50 So. 268; Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653; Witcher v. Brewer, 49 Ala. 121, 122; Northern Ala. Ry. Co. v. Mansell, 138 Ala. 548, 36 So. 459; Lovelace v. Miller, 150 Ala. ......
  • Roman v. Dreher
    • United States
    • Alabama Court of Appeals
    • June 6, 1911
    ...to allow the complaint to be amended by striking out the other parties, and permit judgment against the one. Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653; Wright v. Sample, 162 Ala. 222, 224, 50 So. 268; N. Ala. Ry. Co. v. Mansell, 138 Ala. 561, 36 So. 459; Southern Ry. Co. v. Arnold,......
  • Gossett v. Morrow, 665
    • United States
    • Supreme Court of Alabama
    • June 4, 1914
    ...delicto, a discontinuance or dismissal as to one of several defendants will not discontinue the entire action. Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653. Furthermore, the evidence is without dispute that Glenn was not in possession of the machinery sued for at the time the suit was......
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5 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...of 1907, and to the effect that a discontinuance as to one defendant did not so operate as to all. See, also, Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653 (ex delicto); Montgomery G.L. Co. v. M. & E.R. Co., 86 Ala. 372, 5 So. 735 (ex delicto); Lovelace v. Miller, 150 Ala. 422, 43 So. ......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...50 So. 293; Supreme Lodge, etc., v. Gustin, 202 Ala. 246, 80 So. 84; Wright v. Sample, 162 Ala. 222, 50 So. 268; Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653; Witcher v. Brewer, 49 Ala. 121, 122; Northern Ala. Ry. Co. v. Mansell, 138 Ala. 548, 36 So. 459; Lovelace v. Miller, 150 Ala. ......
  • Roman v. Dreher
    • United States
    • Alabama Court of Appeals
    • June 6, 1911
    ...to allow the complaint to be amended by striking out the other parties, and permit judgment against the one. Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653; Wright v. Sample, 162 Ala. 222, 224, 50 So. 268; N. Ala. Ry. Co. v. Mansell, 138 Ala. 561, 36 So. 459; Southern Ry. Co. v. Arnold,......
  • Gossett v. Morrow, 665
    • United States
    • Supreme Court of Alabama
    • June 4, 1914
    ...delicto, a discontinuance or dismissal as to one of several defendants will not discontinue the entire action. Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653. Furthermore, the evidence is without dispute that Glenn was not in possession of the machinery sued for at the time the suit was......
  • Request a trial to view additional results

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