Marx v. Barbour Plumbing & Elec. Co.
Alabama Court of Appeals
Appeal from Jefferson Circuit Court. Heard before Hon. C. B. Smith. Assumpsit by tbe B. F. Barbour Plumbing & Electric Company against Fannie Marx and another. There was judgment of dismissal for want of prosecution, and on motion such judgment was set aside, and the cause restored to the docket for trial, and defendants appeal.
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Appeal from Jefferson Circuit Court. Heard before Hon. C. B. Smith. Assumpsit by tbe B. F. Barbour Plumbing & Electric Company against Fannie Marx and another. There was judgment of dismissal for want of prosecution, and on motion such judgment was set aside, and the cause restored to the docket for trial, and defendants appeal. The motion stated no' sufficient grounds nor good cause for setting aside said judgment of dismissal, and the action of the court was. duly excepted to by the appellants. — Civil Code 1907, § 4145; McLeocl v. Shelby Improvement Co., 108 Ala. 81. The said motion stated…
1Opinion of the CourtPelham, J.
The distinction between the case of McLeod v. Shelby Iron Co., 108 Ala. 81, 19 South. 326, cited by appellants, and relied upon as authority for reversing this case, and the instant case, is that in the former case there Avas an affidavit on file before the trial court on the hearing of the motion for a neAV trial that Avas not controverted, shOAving that the counsel in that, case “could have been present at the court Avhen the case Avas reached if he had availed himself of the ordinary and usual mode of travel,” that he failed to *406avail himself of the means at hand; and it was held that this…
2Cases cited6 opinions
- McLeod v. Shelly Manufacturing & Improvement Co.Supreme Court of Alabama · 1895
- Ledbetter & Co. v. VintonSupreme Court of Alabama · 1895
- Truss v. Birmingham, LaGrange & Macon RailroadSupreme Court of Alabama · 1892
- Haygood v. TaitSupreme Court of Alabama · 1899
- Western Railway v. WallaceSupreme Court of Alabama · 1911
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3Cited by4 opinions
- Wessex House of Jacksonville, Inc. v. KelleySupreme Court of Alabama · 2005
- Barnes v. GeorgeSupreme Court of Alabama · 1990
- Barnes v. GeorgeSupreme Court of Alabama · 1990
- Poturnicki v. Waterman S. S. Corp.Alabama Court of Appeals · 1951