Walker v. Cuthbert
Supreme Court of Alabama
Writ of Error the Circuit Court of Dallas. Assumpsit by Cuthbert & Stanly v. Walker, who was sued in the first instance with one Bowie, but the latter not being served with process, the suit was discontinued as to him, when the declaration was filed.
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Writ of Error the Circuit Court of Dallas. Assumpsit by Cuthbert & Stanly v. Walker, who was sued in the first instance with one Bowie, but the latter not being served with process, the suit was discontinued as to him, when the declaration was filed. The declaration, besides the common counts, has a special count upon an instrument in writing, in these terms, to wit: “ It is agreed that Cuthbert & Stanly are to receive, in addition to the sum of $500 secured by a note, by us this day given, the further sum of $500; the further sum of $500 to be paid to them out of the monies to be collected…
1Opinion of the CourtGoldthwaite, J.
1. We are not advised by the judgment entry, that any judgment was rendered upon demurrer. The fact that a demurrer is found in the transcript, or referred to in memoranda of the parties, will not authorize us to revise a judgment, which does not exist. The inference, from the condition of the record is, that the demurrer, if not informally disposed of, was waived. It is immaterial therefore to inquire, whether the special count is good or bad, as a recovery might be had on the other counts.
2. It is not necessary now to determine whether the suit was properly discontinued against Bowie, the…
2Cases cited3 opinions
- Hair v. MoodySupreme Court of Alabama · 1846
- Stebbins v. FitchSupreme Court of Alabama · 1827
- Givens v. RobbinsSupreme Court of Alabama · 1843
3Cited by18 opinions
- Cochran v. MillerSupreme Court of Alabama · 1883
- Reeves v. StateSupreme Court of Alabama · 1892
- McElhaney v. GillelandSupreme Court of Alabama · 1857
- Gilman, Son & Co. v. JonesSupreme Court of Alabama · 1888
- Clanton v. StateSupreme Court of Alabama · 1892
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