55 So. 1034 | Ala. Ct. App. | 1911
This is an appeal from a judgment entered by default, on the 25th day of April, 1910, on a complaint filed on the 26th day of January, 1910, which counted on a promissory note alleged to have been made by the defendants on the 1st day of February, 1910. It is to be observed that, according to the averments of the complaint, the note sued on was made after the suit was brought, and was not yet due at the time the judgment was entered.
The question in this case is whether a complaint, counting on a promissory note, not due at the time the suit is brought, can be said to contain “ a substantial cause of action,” within the meaning of that language as used in the section of the Code just cited. In the case of Randolph v. Cook & Ellis, 2 Port. 286, it Avas decided that a suit brought on a promissory note before it was due was premature, and that a judgment for the plaintiff in such suit, entered after appearance and plea by the defendant, was available in error.
For the term “cause of action,” a number of definitions may be found in the authorities, differing principally'in the modes of expression adopted, not in what is commonly regarded as essential requirements. The definitions given by the Century Dictionary are: “The situation or state of facts which entitles a party to sustain an action; a right of recovery.” Several definitions of the term are quoted in 3 American & English Encyclopedia of Law (1st Ed.) 46, among them the following: “A right to bring an action, which implies that there is some person in existence who can assert, and also a person who can lawfully be sued.” “It is the right which a party has to institute and carry through an action.” “The right to nrosecute an action with effect.”
• As the complaint in this case did not “contain a sub-' stantial cause of action” against the defendants, the judgment by default entered thereon must be reversed.
Reversed and remanded.