58 So. 805 | Ala. Ct. App. | 1912
The appellant’s motion to establish a bill of exceptions in this case was passed upon favorably to the movant by the Supreme Court where the case was then pending. Subsequently it was submitted on briefs in that court, and afterwards, upon the establishment of the Court of Appeals, was transferred to this court.
The court below, on motion of the appellees, discontinued the suit brought by the appellant in that court against the appellees as joint obligors on a constable’s bond.
The statement of the presiding judge relating to the proceedings had in passing upon and granting appellees’ motion for a discontinuance, made at the instance of both parties and incorporated in the bill of exceptions, is as follows: “On the 27th day of January, 1909, the case was called for trial and both parties, through their attorneys, announced ready. The case was submitted upon demurrers to counts 1 and 2 of the complaint, and the same were by the court sustained. Mr. Black, attorney for plaintiff, thereupon asked leave to amend the complaint by separate paper, which as I recollect it, he held in his hand and handed it to the court then and thére for examination; the same having already been prepared. The court allowed the amendment, then and there entering upon the docket the following: ‘Com
The suit Avas instituted by appellant against all of the several defendants named in the complaint jointly, seeking to recover damages from the defendants as joint obligors on a constable’s bond for an alleged trespass committed by the constable, and the amendment to the complaint offered by the appellant on January 27, 1909, struck out as parties defendant Arlington L. Henderson and B. T. Hudson. The original complaint was filed July 21, 1908, and on August 24, 1908, W. T. Ward, Esq., a regular practicing attorney at that bar, appeared as an attorney in the cause and filed demurrers to the complaint as attorney for all of the defendants except Arlington L. Henderson. The main question presented for our determination is Avhether or not the action of the plaintiff in voluntarily striking out B. T. Hudson as one of the joint parties defendant Avithout the necessity for such action being shown, or appearing from the record, worked a discontinuance of the entire cause. Under the rulings of the Supreme Court, there can be but one answer to this question, and that is that a'dismissal as to
That the paper writing containing the amendment was not marked filed by the clerk can avail the appellant nothing. It was brought to the attention of the court while the case was on trial, was presented in open court by appellant’s counsel to the presiding judge for the court's action, and thus was made a court paper. After having been presented, thus acted upon and allowed by the court, at his instance, counsel cannot be heard to say that he did not file the amendment. Having invoked the action of the court on the amendment, he- is estopped from denying the court’s right to act upon it.—Taylor et al. v. Crook, Administrator, et al., 136 Ala. 354, 378, 34 South. 905 Am. St. Rep. 26; Knight v. Farrell & Reynolds, 113 Ala. 258, 262, 20 South. 974; Lehman, Durr & Co. v. Clarke, 85 Ala. 109, 4 South. 651.
This ruling of the court allowing the amendment was announced by the court and entered upon the judge’s trial docket, whereupon appellee’s counsel moved the court to enter a discontinuance. All of this took place in open court before a request was made by opposing counsel for leave to withdraw the amendment or offer proof showing a necessity for dismissnig as to the defendant Hudson, and, under the authorities' first above
The question of whether the court did or did not have the discretion to allow the plaintiff to withdraw the amendment because of the inherent power of the court over its orders and judgments during the term at which they are entered or rendered, or because the matter was in fieri, is not before us, for if in the discretion of the court that discretion was exercised in refusing to allow plaintiff to withdraw the amendment, and matters resting entirely in the discretion of a trial court are not reviewable here.
The case of Shriner v. Craft, 166 Ala. 146, 51 South. 884, 28 L. R. A. (N. S.) 450, 189 Am. St. Rep. 19, relied upon by appellant, is not in conflict with the cases above cited, as the record before the court in that case showed the necessity for dismissing as to one of the defendants. The complaint in that case alleged that the contract sued upon was between the plaintiff and the defendant W. A. Shriner, and by error, apparent on the face of the proceedings, both Shriner and his wife were made parties defendant, and the court correctly held that the wife was an improper defendant and that this was shown on the face of the complaint, and a dismissal could be had as to the wife without working a discontinuance of the case.
An amendment striking a party defendant where there is no misjoinder or nonjoinder is allowable where a defense personal to the party stricken is interposed or is shown by the record to exist, but in the case at bar at the time plaintiff dismissed as to the defendant Hudson there was no personal defense interposed by this defendant such as would authorize a discontinuance as to him,
When the discontinuance was had as to one of the joint defendants under such circumstances, unless waived, it operated as a discontinuance of the entire action, and the trial court after a discontinuance was divested of jurisdiction to proceed further, and was without authority to admit or hear evidence of Hudson’s death pendente lite or other evidence as a reason for plaintiff’s dismissing her suit as to such defendant.—Evans Marble Co. v. McDonald & Co., supra; Curtis v. Gaines, 46 Ala. 455.
When the attorney who regularly appeared on August 24, 1908, for all of the parties except Arlington L. Henderson’ filed demurrers to the complaint, no questions was raised as to his right or authority to appear as counsel for these parties, nor was his right or authority challenged in any way until after the court had allowed plaintiff’s amendment on January 27, 1909, and a motion had been made by opposing counsel to discontinue the cause. The motion to require the attorney appearing for these defendants to make proof of his authority for appearing in the cause was a matter largely in the discretion of the court. It did not appear to the court below that the grounds assigned in support of such motion were sufficient, and we concur in this conclusion. Certainly under the facts presented no abuse of the judicial discretion is shown in refusing to grant the motion to require such proof to be made.
From what we have said it will be seen that there was no error committed by the trial court in its ruling assigned as error, here, and the judgment of the court below is accordingly affirmed.
Affirmed.