Dearing, Sink & Co. v. Smith
Supreme Court of Alabama
Wkit of Error to the County Court of Tuscaloosa. The defendants in error brought an action of > assumpsit against the plaintiffs on a promissory note for the sum of one hundred and ninety-four dollars and seventy-five cents, dated the 20th December, 1838, and payable four months after date, at the Bank of the State of Alabama.
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Wkit of Error to the County Court of Tuscaloosa. The defendants in error brought an action of > assumpsit against the plaintiffs on a promissory note for the sum of one hundred and ninety-four dollars and seventy-five cents, dated the 20th December, 1838, and payable four months after date, at the Bank of the State of Alabama. The writ is returned executed on two of the defendants, to wit: James H. Dearing and Philip J. Sink; as to the other, Wiley J. Dearing, there is po return, but on the face of the process, as well as in the declaration, they are all described as copartners and merchants,…
1Opinion of the CourtCollier, C. J.
1. It is true that it does not appear from the record that the process was served on Wiley J. Dearing, but the want of it was waived by his voluntary appearance; a fact which is expressly affirmed by the judgment entry.
2. Although the record does not discover a formal withdrawal of the pleas, that were pleaded by the defendant, Sink, yet the recital in the judgment, that he said nothing in bar or preclusion of the plaintiffs’ action, whereby the same was undefended, certainly amounts to a waiver of them; for such a recital is incompatible with the notion that the pleas were insisted on. Even…
2Cases cited2 opinions
- Bank of United States v. SmithSupreme Court of the United States · 1826
- Bell v. Rhea, Conner & Co.Supreme Court of Alabama · 1840
3Cited by8 opinions
- Davis v. SchnellDistrict Court, S.D. Alabama · 1949
- Perkins v. CorbinSupreme Court of Alabama · 1871
- Findley v. CunninghamWest Virginia Supreme Court · 1903
- Kilgore & Son v. Shannon & Co.Alabama Court of Appeals · 1912
- Bancroft v. StantonSupreme Court of Alabama · 1845
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