Eslava v. Ames Plow Co., 47 Ala. 384

Eslava v. Ames Plow Co.

47 Ala. 384 | Ala. | 1872

B. F. SAFFORD, J.

The appeal is upon the record only, without a bill of exceptions.

1. A corporation is a person for the purpose of a suit. Rev. Code, § 1; Const. Art. XIII, § 15.

2. By an act of the legislature “to regulate the practice in the circuit court of Mobile county,” approved February 28, 1870, and Rule 14, made in pursuance of it by the judge of that court, no attorney, or officer of the court, is permitted to be surety for costs, or surety on any bond required to be given in any case in that court. In this case the rule is inapplicable, as the suit was commenced before the passage, of the act.

3. Even if it was applicable, the judgment entry recites that the defendant, who is the appellant, failed to file her plea; leaving it uncertain whether the judgment should be regarded as one by default, or by nil dicit. It is unnecessary to determine what the presumption should be. Section 2804 of the Revised Code, in requiring corporations to give security for the costs, directs that, on failure to do so, the suit, on motion of the defendant, must be dismissed. The ’ requirement seems to be one for the benefit of the defendant, which he may waive; and this view is strengthened by the provision of section 2806 of the Revised Code, making the attorney who directs the issue of the summons, without such security, and the clerk issuing it, liable to the defendant, on motion, for the costs of the suit. In the Tuskaloosa Wharf Co. v. Mayor, &c., of Tuskaloosa, (38 Ala. 514,) it was held that, notwithstanding a motion to dismiss was made and overruled, the objection can not be made in this court without an exception. As the statute only requires the suit to be dismissed on the motion of the *387defendant, we decide that the objection can not be made for tbe first time in tbis court, whether tbe judgment is by default or not.

4. Tbe summons and complaint appear to have been executed by tbe sheriff by B. H. Hamilton, D. S. This is sufficient. — Briggs & McClure v. Greenlee, A. R. 123.

Tbe judgment is affirmed.