33 Ala. 185 | Ala. | 1858
A motion is made to dismiss the appeal in this case, upon the ground that the appellant, who is the principal in the appeal bond, is a feme covert. The ■Code, in sections 1987, 1998, and 2131, authorizes proceedings at law for and against a feme covert in her own name; and section 3019 requires the appellant to give the appeal bond. To deny to her the power to give an appeal bond in such cases, where her appearance is ■neither by next friend nor guardian, would involve a ■denial of the right of appeal accompanied by a supersedeas. The Code must, therefore, be understood to clothe a married woman with the power of giving an appeal bond.
The sheriff’s return shows that there was no service upon the feme covert defendant. It negatives the fact of the leaving of a copy of the summons and complaint with her, as required by section 2165 of the Code. There was no appearance by the feme covert defendant. The judgment, being rendered against her without a service by her or an appearance, is erroneous.—Smith & Howell v. Winthrop, Minor, 425; Lucy v. Beck, 5 Porter, 166; Griffin v. Rayfield, 19 Ala. 27; Faver v. Briggs, 18 Ala. 478; Kennedy v. Millsap, 25 Ala. 570; Dew v. Cunningham, 28 Ala. 466.
Judgment reversed, and cause remanded.