Beard v. Branch Bank at Mobile
Supreme Court of Alabama
Error to the County Court of Mobile. Motion by the Bank against the plaintiff in error. The notice issued against the plaintiff in error and two others, and was executed on all. A. Godbold, one of the persons notified, appeared and pleaded non est factum. The Bank moved to dismiss against Godbold, and for judgment against Beard, which was granted.
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Error to the County Court of Mobile. Motion by the Bank against the plaintiff in error. The notice issued against the plaintiff in error and two others, and was executed on all. A. Godbold, one of the persons notified, appeared and pleaded non est factum. The Bank moved to dismiss against Godbold, and for judgment against Beard, which was granted. The error assigned, is the dismissal of the suit as to Godbold. contended, that the dismissal of the motion against one of the defendants, who had appeared, and pleaded, was a discontinuance of the entire suit.
1Opinion of the CourtOrmond, J.
It has been repeatedly held, that in these summary proceedings, the notice has not the effect of process, nor is a suit pending, until a motion for judgment is submitted to the Court upon it. [See Lyon v. The State Bank, 1 Stew. 442; Bondurant v. Woods & Abbott, 1 Ala. Rep. 543; Griffin v. State Bank, 6 ib. 911.] It follows, that the omission to proceed against one of the defendants, cannot work a discontinuance of the mo*345tion. The dismissal as to Godbold, was unnecessary, but cannot prejudice. It amounts merely to a declaration, that the Bank did not desire to proceed against that person.
Let…
2Cases cited2 opinions
- Lyon v. State BankSupreme Court of Alabama · 1828
- Bondurant v. WoodsSupreme Court of Alabama · 1840
3Cited by1 opinion
- Connoly v. Ala. & Tenn. Rivers RailroadSupreme Court of Alabama · 1856