43 Ala. 268 | Ala. | 1869
This is an action of debt, commenced by summons and complaint, in the circuit court of Lawrence county, on the 14th day of January, 1862. It is founded
Came the plaintiff by attorney and dismisses his suit as to R. C. Wright, and the “ Thomas Masterson, adm’r de bonis non of the estate of H. J. Austin, vs. Nelson Fennell, Robert O. Wright, Henry Fennell, other defendants, being solemnly called, came not, but made default. It is, therefore, considered by the court, that the plaintiff, as such administrator, as aforesaid, recover of said defendants the sum of six hundred and ninety-one dollars and ninety cents damages, sustained by reason of the detention of said debt, besides the costs in this behalf expended.”
It will be seen from this, that the suit against Wright, one of the defendants, who has been served with process before judgment, was dismissed, as to him, without assigning any reason therefor. Under the law, as settled by this court, in this State, from a very early date up to the present time, such a dismissal has not been permitted. The order dismissing the suit as to Wright, in the court below, operated as a discontinuance of the whole action, and no judgment should have been rendered for the plaintiff in the present state of the record. Were this an open question, we might, under our present statutes, be inclined to
As no judgment was rendered in favor of Wright, in the court below, for his costs, as might have been done, and as the judgment is against “ the defendants,” without naming them, and as this might be construed to include all the defendants mentioned in the summons, so as to reach Wright, it may be thought that, in order to sustain the judgment, it ought to be so considered. But this would be a refinement too subtle for common sense, which has been said to be common law, and which is, in great part, the law of this State. Such a construction would require the court to presume, in'favor of the judgment below, that Wright, after being dismissed out of court, came back again, and suffered judgment to be rendered against him. Such a conclusion would seem to savor more of cunning than of practical wisdom, and would afford too unstable a basis for a legal judgment.—Rev. Code, § 2554; 1 Blac. Com. 70, marg.
The judgment below is reversed, and the cause remanded for a new trial.