Eaton v. P. W. & T. R. Harris
Supreme Court of Alabama
Appeal from the Circuit Court of Marengo. Tried before Hon. James Cobbs. This was an action on a note brought by appellees against appellants. The defendants below moved to quash the summons, upon the ground, that the clerk who issued it was not a lawful officer; which motion the court overruled, and defendants excepted. The other points in the case plainly appear from the opinion of the court.
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Appeal from the Circuit Court of Marengo. Tried before Hon. James Cobbs. This was an action on a note brought by appellees against appellants. The defendants below moved to quash the summons, upon the ground, that the clerk who issued it was not a lawful officer; which motion the court overruled, and defendants excepted. The other points in the case plainly appear from the opinion of the court. There was a judgment nil dicit for the amount of the .note and interest, from which the defendants appealed. The summons, as to one of the three defendants, was returned by the sheriff “ not found,”…
1Opinion of the CourtJudge, J.
1. The right to the office of clerk of the circuit court can not be determined on a motion to quash the leading process of a suit which has been issued by the *492incumbent in his official capacity. The proper mode of testing the right of the incumbent to the office, is by a direct proceeding for that purpose. — See opinion in Harris et al. v. Parker, Adm’r, on the motion to dismiss the appea in that case, delivered at the June term, 1867, and the authorities therein cited.
2. It is not averred in the complaint, in terms, that the note sued on was executed by the appellants. But the judgment entry…
2Cases cited4 opinions
- Andrews v. McCoySupreme Court of Alabama · 1846
- Gilbert v. LaneSupreme Court of Alabama · 1836
- Hobson & Sons v. EmanuelSupreme Court of Alabama · 1839
- Dunn v. TillotsonSupreme Court of Alabama · 1839
3Cited by6 opinions
- Grigg v. GilmerSupreme Court of Alabama · 1875
- Davis v. EvansSupreme Court of Alabama · 1954
- Ex parte CallCourt of Appeals of Texas · 1877
- Falkner v. Christian's AdministratorSupreme Court of Alabama · 1874
- Hunt v. Pleasant Hill Cemetery Ass'nSupreme Court of Kansas · 1882
1 more not listed; retrieve them via the Exa API.