51 So. 625 | Ala. | 1910
— This suit, commenced before a justice of the peace by B. F. and A. L. Holmes, as partners in business under the name of Holmes Bros., against W. H. Phillips, G. F. Bucheit, and J. F Light, as joint makers of a promissory note, was, after judgment against all the defendants, removed to the circuit court by writ of certiorari, and to this court by appeal The complaint, after declaring in common form on the note, proceeded: “Plaintiffs claim of the defendants the further and additional sum of $15.00 or so much thereof as may be reasonable attorney’s fees in the premises, and plaintiffs aver that in the said note the defendants stipulated as follows,: ‘If this note is not paid at ma- ■ .turity, to pay the expenses of collection, including attorney’s fees.’ ” The attack upon this complaint for lack of certainty in alleging the amount of recovery sought on account of attorney’s fees cannot be sustained. The note secured a reasonable fee. It was competent for the plaintiffs to limit the amount of recovery to $15.00 by claiming that amount. By the alternative claim of so much thereof as may be a reasonable fee, the plaintiffs accurately stated their recoverable damages on that amount. The claim as formulated was for a reasonable fee not in excess of $15. The ruling here in favor of the complaint was free from error.
In plea A the defendants set up that the plaintiffs were not partners on the day of the filing of the complaint in the circuit court. The suit had been properly brought in the name of B. F. and A. L. Holmes, partners in business under the name of Holmes Bros., and the plea set up a dissolution of the partnership subse
The cause was removed to the circuit court on the petition of the defendant W. H. Phillips in' which the other defendants did not join. The other defendants now insist that as to them the circuit court never acquired jurisdiction. Until this time it has remained a question of some doubt wdiether the appeal or certiorari bv one of two or more defendants from a judgment of a justice of the peace removes the entire cause to the circuit court, or only the case of the appealing defendant. In Ex
The appellant Phillips insists, by separate assigm ment of error, that the circuit court had not jurisdiction to render a monetary judgment against him for the reason that the certiorari removing the cause was a common-law certiorari, upon which the court had power only to render a judgment of affirmance or one quashing the judgment. Upon removal to the circuit court by the
So, also, the appellants, other than Phillips, bavin; accepted whatever advantage there was to be had from a trial de novo in the circuit court, and having participated in the trial of the case there as parties to the record, cannot now be heard to say that they did not join in the appeal so as to escape the assessment of damages for delay. That assessment, as for anything appearing to the contrary, was free from error.
' Affirmed.