Williams v. Lewis
Supreme Court of Alabama
The facts as shewn by the record in this cause are as follows: A writ of capias ad respondendum, in debt, was sued out by Henderson Levyis, against Benjamin M. Williams, Mary M. Mitchell and Charles M. Mitchell, returnable to the fall term, 1823, of Franklin Circuit Court. The sheriff returned that it was executed on Benjamin and Mary Mitchell, and that Charles Mitchell was not to be found. The plaintiff declared against the three defendants, as if in custody.
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The facts as shewn by the record in this cause are as follows: A writ of capias ad respondendum, in debt, was sued out by Henderson Levyis, against Benjamin M. Williams, Mary M. Mitchell and Charles M. Mitchell, returnable to the fall term, 1823, of Franklin Circuit Court. The sheriff returned that it was executed on Benjamin and Mary Mitchell, and that Charles Mitchell was not to be found. The plaintiff declared against the three defendants, as if in custody. No plea appears in the record; but at March term, 1S25, judgment was rendered for the plaintiff in the following words: ‘ ‘This day…
1Opinion of the Court
By CHIEF JUSTICE LIPSCOMB.
The names of the particular defendants who waived their plea are'not given, nor is the plea itself set out. If there had been a general appearance for all the defendants, they would have been estopped from saying the writ had not been executed. It would be presuming too much, to say that this record shewed that Charles L. Mitchell had appeared by his attorney; there were two defendants in Court, and the record may be strictly true without his appearance, by himself or attorney. The judgment was improperly rendered against Charles Mitchell, and it is also erroneous as…
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