Tankersley v. Childers
Supreme Court of Alabama
Appeal from the Circuit Court of Montgomery. Tried before the Hon. Robert Dougherty. Assumpsit by the appellees, James Childers, David W. Childers and Paschal W. Childers, against Felix M. Tankersley.
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Appeal from the Circuit Court of Montgomery. Tried before the Hon. Robert Dougherty. Assumpsit by the appellees, James Childers, David W. Childers and Paschal W. Childers, against Felix M. Tankersley. The action was brought to recover plaintiffs’ portion of the proceeds of certain bales of cotton, which the defendant, who was a constable, had seized and sold under an execution against David Childers : i;ho declaration contained the common counts. 1. This action is for money had and received, and before the plaintiffs are entitled to recover, tlioy must prove their claim to some specific sum.…
1Opinion of the CourtPhelan, J.
The action was assumpsit by three of the Childers to recover of the defendant their portion of the proceeds of the cotton which was sold by him as constable under an execution against David Childers, who, together with one Smyth and the plaintiffs, was a tenant in common of the cotton which he sold.
The right of the plaintiffs to waive the tort, the conversion, and sue in assumpsit, is not denied. But it is insisted by plaintiff in error, that in this form of action all the parties in interest must join in action, and that they cannot sue if any number less than all join as plaintiffs. This…
2Cases cited2 opinions
- Smyth v. TankersleySupreme Court of Alabama · 1852
- Smith's Executors v. WileySupreme Court of Alabama · 1853
3Cited by9 opinions
- Patten v. SwopeSupreme Court of Alabama · 1920
- Bank of Oglethorpe v. BrooksCourt of Appeals of Georgia · 1924
- Peck v. LampkinSupreme Court of Alabama · 1917
- Davis v. OrmeSupreme Court of Alabama · 1860
- Gore v. GoreSupreme Court of Alabama · 1948
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