49 So. 225 | Ala. | 1909
There is but one question involved in this appeal — whether there was a discontinuance of the cause of action. The facts seem to be undisputed, •and are as follows: The plaintiff lodged with the clerk of the circuit court of Wilcox county the summons and complaint on the 3d day of April, 1907, and the clerk
The tidal court was clearly in error in dismissing this cause of action. It is unnecessary to decide whether or not there had been a discontinuance of the cause of action brought on the 3d day of April, 1907, for the reason that it would be error for the court to strike the cause of action brought on the 31st day of August, 1907, on the ground of discontinuance, whether there had been a discontinuance before or not. If there liad been a discontinuance of the first action brought, plaintiff had a right to bring the second on the 31st day of August, 1907. If there had not been a discontinuance, there were two causes of action pending at the same time, in the same court, between the same parties, as to the same subject-matter, and the second suit might then have been abated by a plea in abatement because there was another pending; but in that event the first would still be pending, and the defendant, for the first time, could have had an alias summons issued upon the original complaint. There is no doubt that the filing of the complaint with the clerk on the 3d day of April, 1907, and the delivery of the same by him to the sheriff, was the commencement of the suit within the meaning of our statute. — Code 1907, § 4853; West v. Engel, 101 Ala. 509, 14 South. 333.
Whether or not the failure of the plaintiff to have the cause entered upon the docket and to obtain a continuance, or to have an alias summons and complaint issued because of failure to serve before that term, amounts to a discontinuance, it is not necessary to decide, for the reason that the refiling of the action on the 31st of August, 1907, was as much the beginning of another suit as the filing of that of April 3d was the commencement of the original; and certainly it cannot be contended that
It is possible that the plaintiff was negligent in not having his first cause of action placed upon the trial docket, and in not having an alias summons and complaint to issue, which the court only could do; but, if guilty of such negligence, it was without possible injury to the defendant, for the reason that there had been no service or notice whatever to the defendant, and under the statute he had a right to dismiss this action in vacation and without notice, and, this being done, he had a right to bring the second action at.the time and in the manner recited. While it might have been improper for the plaintiff and the clerk to use the court papers theretofore filed in the original suit, yet this could not
A discontinuance is in substance and effect an abandonment by the moving party of his pending cause. It is a mere gap or chasm in the proceedings, occurring while the suit is pending. It is nothing more than an action or declaration of the plaintiff’s willingness to stop the pending action. It is not an adjudication of his cause by the proper tribunal, nor is it an acknowledgment by himself that his claim is not well founded, nor can it amount to a bar of another action. — Ex parte Humes, 130 Ala. 201, 30 South. 732; Hayes v. Dunn, 136 Ala. 528, 34 South. 944; Bullock v. Perry, 2 Stew. & p. 319.
The judgment is reversed, and the cause remanded.