Griffin v. Wilson

CHILTON, J. By the act of 1839, (Clay’s Dig. 334, § 115,) it is enacted, that “in all suits instituted in any court having jurisdiction thereof, for,the purpose of collecting money, no judgment shall be rendered at the appearance term, except by the consent of parties, from the failure of the defendant or defendants to plead or enter appearance, as now by law required.” The writ in the case before us was executed on James Griffin and Moulton Rayfield, .but was returned to the first term of the court, “not found,” as. to David A. Griffin. Is was then permissible for the plaintiff to. have, discontinued as against -the party not found, and to have, declared against the defendants on whom the writ was executed. -. H-g did hot, however, elect to do this, but sued out an alias writ against all the defendants, which was duly executed, and the plaintiff .took judgment by default against all the defendants at the term,of the court to which the writ was made returnable. This was clearly in violation of the statute above stated, and erroneous. [29] There is no force in the objection, that the plaintiffs in error unite in then* assignments of error, and that the judgment having been rendered at the proper term as to two of them, should, upon their joint assignment, be affirmed as to all; for, as they were all served with process, a discontinuance as to one of them before any defence personal to himself was pleaded, would have amounted to a discontinuance of the entire action.—Adkins v. Allen, 1 Stew. 130; Keebles v. Ford & Vining, 5 Ala. 183. Let the judgment be reversed and the cause remanded.