Legal Opinion

Earbee v. Ware

Supreme Court of Alabama

Decided June 15, 1839PublishedCited by 5 opinions

Error to Sumter Circuit court. Assumpsit, before Chapman, J. On the ninth day of March, .eighteen hundred and thirty-eight, the defendant in error caused to be issued, by the clérk of the Circuit court of Sumter, a writ of ca-pias ad respondendum against the plaintiffs, in usual form. The plaintiffs, Rain & Johnston, are described as “late partners in trade,” &c.

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Error to Sumter Circuit court. Assumpsit, before Chapman, J. On the ninth day of March, .eighteen hundred and thirty-eight, the defendant in error caused to be issued, by the clérk of the Circuit court of Sumter, a writ of ca-pias ad respondendum against the plaintiffs, in usual form. The plaintiffs, Rain & Johnston, are described as “late partners in trade,” &c. The writ does not appear to have been placed in the sheriff’s hands, but on it is endorsed an acknowledgment, as follows: “We acknowledge service of the within writ, and waive its being entered on the appearance docket. 9th March,…

1Opinion of the CourtCollier, C. J.

• 1st. In respect to the first point, it no where appears from the record, that the writ was not in court both before and during the term first after its issuance. It may have been there, and actually entered upon the appearance docket: such a supposition is only negatived, by the waiver made by the plaintiffs in error, in their acknowledgment of service; and if such an inference were necessary to sustain the judgment of the Circuit court, according to the rule, which makes every intendment consistent with the record, in favor of the regularity of the proceedings of courts of justice, it…

2Cited by5 opinions

  1. Moore v. HornSupreme Court of Alabama · 1843
  2. Talladega Insurance v. WoodwardSupreme Court of Alabama · 1870
  3. Ward v. ManlySupreme Court of Alabama · 1896
  4. Glenn v. GlennSupreme Court of Alabama · 1925
  5. Henderson v. MillsAlabama Court of Appeals · 1913

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