Palmer v. Bice
Supreme Court of Alabama
Appeal from the Circuit Court of Benton. Tried before the Hon. Thomas A. Walker. This was an action for a malicious presecution, and was commenced in September, 1854. The defendants pleaded the statute of limitations of one year, to which plea the plaintiff demurred. The court overruled the demurrer, and the judgment entry recites that, “ by reason of this ruling, the plaintiff was forced to take a nonsuit, which he did;” but the point was not reserved by bill of exceptions.
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Appeal from the Circuit Court of Benton. Tried before the Hon. Thomas A. Walker. This was an action for a malicious presecution, and was commenced in September, 1854. The defendants pleaded the statute of limitations of one year, to which plea the plaintiff demurred. The court overruled the demurrer, and the judgment entry recites that, “ by reason of this ruling, the plaintiff was forced to take a nonsuit, which he did;” but the point was not reserved by bill of exceptions. This ruling is now assigned as error.
1Opinion of the CourtRice, C.J.
After a plaintiff has voluntarily taken a nonsuit, his right to reinstate his case, or to review errors committed in it, by writ of error or appeal, is the mere creature of the statute. — Mahoney v. Chandler, 7 Ala. Rep. 732.
As the right is the creature of the statute, its extent must be determined by the statute.
The first act in this State, upon the subject, is the act of 4th February, 1846, (Pamphlet Acts of 1845-6, p. 35,) the first section of which declares, “ that in all cases where it may be necessary for a plaintiff, in any proceeding at law, to enter a nonsuit, by reason of the…
2Cases cited3 opinions
- Duncan v. HargroveSupreme Court of Alabama · 1853
- Shields v. ByrdSupreme Court of Alabama · 1849
- Mahoney v. ChandlerSupreme Court of Alabama · 1845
3Cited by9 opinions
- Vincent v. RogersSupreme Court of Alabama · 1857
- Hurst v. Bell & Co.Supreme Court of Alabama · 1882
- Prichard v. SweeneySupreme Court of Alabama · 1895
- Wyatt v. EvinsSupreme Court of Alabama · 1875
- Frank v. StateSupreme Court of Alabama · 1866
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