Oliver v. Hutto
Supreme Court of Alabama
Whit ofErrortothe Circuit Court of Pike. This was an action of assumpsit, on a promissory note, at the suit of the defendant in error, against the plaintiff and one Wilkinson. The writ was executed on the former, and returned ‘not found,’ as to the latter; the declaration pursues the writ without noticing the defect of service thereof; and the judgment is rendered against the plaintiff alone, without expressly discontinuing the suit as to Wilkinson.
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Whit ofErrortothe Circuit Court of Pike. This was an action of assumpsit, on a promissory note, at the suit of the defendant in error, against the plaintiff and one Wilkinson. The writ was executed on the former, and returned ‘not found,’ as to the latter; the declaration pursues the writ without noticing the defect of service thereof; and the judgment is rendered against the plaintiff alone, without expressly discontinuing the suit as to Wilkinson. As to the party not served with process, the action should have been discontinued; and the failure to do this is fatal to the judgment.
1Opinion of the CourtCollier, C. J.
The second section of the act of 1818, “ for the better regulation of judicial proceedings,” enacts, whenever a writ shall issue against any two or more joint, or joint and several obligors, or drawers, &c. of any such bond, promissory note, &c., it shall be lawful for the plaintiff, at any time after the return of the writ, to discontinue such action against any one or more of the defendants on whom the writ shall not have been executed, and proceed to judgment against any one or more of the defendants on whom the writ shall have been executed, &c.— [Aik. Dig. 267.] The question raised upon…
2Cited by4 opinions
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