Whitaker v. Van Horn

PETERS,- J. John D. Yan Horn, appellee, sued James G. Whitaker and O. P. Hall, by summons and complaint, in the city court of Mobile, for $821 18, the same being the amount of two accounts; one for $581 18, and the other for $240. Said suit was commenced on the 6th day of May, 1867. Both defendants were regularly served with process, and both appeared in court and separately pleaded the 257 “general issue.” The cause then proceeded to trial, and it was submitted to the jury on this issue. The verdict of the jury and the judgment of the court were in these words: “We, the jury, find for the plaintiff and assess the damages at five htindred and sixty-two dollars and eighty cents, against J. G. Whitaker. It is therefore considered, that the defendant, O. P. Hall, go hence discharged, and that the plaintiff recover of the defendant, James G. Whitaker, the sum of five hundred and sixty-two dollars and eighty cents, the amount of damages assessed by the jury, together with the costs in this behalf expended.” This judgment was rendered on the 7th day of January, 1868 ; and on the 13th day of the same month, the court granted the plaintiff a new trial, and reinstated the case upon the docket, “ with both Whitaker and Hall parties defendant,” as before the the trial. The new trial was had in the case on the 1st day of April, 1868, when the suit was “ discontinued” as to Hall, “ there being no evidence tending to show that O. P. Hall was discharged from said suit, because that he was a, minor or bankrupt, or for other personal cause ;” and judgment was rendered upon verdict against Whitaker alone ; and no further notice was taken of Hall. On the 14th day of April, 1868, the defendant, Whitaker, moved in arrest of judgment, because the plaintiff discontinued his suit against Hall. This motion was refused and overruled. And thereupon Whitaker brought the case to this court by appeal. And, he here now, assigns for error the refusal of the motion in arrest of judgment in the court below, and the discontinuance of the suit as to Hall. The first section of the act of December 24th, 1824, entitled, “ An act to regulate proceedings at common law,” is in these words: “ No cause shall be reversed, arrested, or otherwise set aside after verdict or judgment, for any matter on the face of the pleadings not previously objected to ; provided, the declaration contains a substantial cause of action, and a material issue to be tried thereon.” — Olay’s Dig., p. 322, § 53. This is almost the identical language of the Code upon the same subject of errors and amendments. Revised Code, § 2811. Yet the decisions of this court, 258 for a long series of years, have never recognized this section of that law as'Sufficient to cure the error arising from an unauthorized discontinuance. We therefore feel bound to adhere to the law upon this question, as heretofore settled. To strengthen this view, it also appears that the present Code recognizes discontinuances as a part of our law, and enlarges the common law rule touching them, so as to permit discontinuances in the case of any party not served with process. — Revised Code, § 2545. This evidently implies that errors arising from this source may still exist in this State. But the view of the eminent counsel for the appellee would in a great measure ignore them, by bringing them under the influence of section 2811 of the Revised Code. This seems not to be the true construction of this section of the law. Following the construction of the decisions of this court, w'e confine the section of the Code above referred to, and which was relied on by the appellee’s counsel, to such errors as arise from mispleading or mistakes committed in the court below, as may be corrected upon timely and proper application to that court, and not so as to include the error of a discontinuance technically so-called. Discontinuances do not fall under the head of amendable errors, if the judgments of our predecessors in this tribunal are to be followed.—Revised Code, §§ 2545, 2811; Kennon v. Bell, Min. R. 98; Atkins v. Allen, 1 Stew. 130; Keebles v. Ford, 5 Ala. 183; Givens v. Robins, 5 Ala. 676; Comstock v. Givens, 6 Ala. 95; Harrington v. Smith, 2 Saund R. 207; also, Walker v. Cuthbert, 10 Ala. 213; 21 Ala. 479; 22 Ala. 116; 39 Ala. 320, and Ivey v. Gamble, 7 Porter, 545. If the question was res integra, we might feel authorized to come to a different conclusion; but the current of our decisions forbid it now. The judgment and ruling of the court below, being based on a different view of the law, are erroneous, and are therefore reversed, and the cause remanded.