Roberts v. Johnson
Supreme Court of Alabama
George S. Johnson sued out a writ in debt returnable to the Circuit Court of Madison county, against Robert W. Roberts and John C. Gibbons, to recover on a note made b3>- them for $933. On this writ the sheriff made the following return “Executed — copy offered to defendant Roberts, and not accepted, 25th Rpril, 1S27.” The plaintiff at the return term, filed his declaration against Roberts only, reciting that the said Gibbons was not found, and discontinuing his suit as to…
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George S. Johnson sued out a writ in debt returnable to the Circuit Court of Madison county, against Robert W. Roberts and John C. Gibbons, to recover on a note made b3>- them for $933. On this writ the sheriff made the following return “Executed — copy offered to defendant Roberts, and not accepted, 25th Rpril, 1S27.” The plaintiff at the return term, filed his declaration against Roberts only, reciting that the said Gibbons was not found, and discontinuing his suit as to him. At the trial, a judgment by default was taken by the plaintiff against Roberts; and at the same term, on the…
1Opinion of the Court
By CHIEF JUSTICE LIPSCOMB.
There is some ambiguity in the sherifl’s return; a fair constructioii of it perhaps would be, that it was served on Roberts only, and if so, it was competent for the plaintiff to discontinue as to the other. But if the service had been perfected on both, the declaration being against one only, it should have been taken advantage of in the Court below by plea. The defendant suffered judgment by default, and opened the default on affidavit of merits, and then again permitted the judgment by default to be entered for want of a plea. The judgment must be affirmed.
Judgment…
2Cited by2 opinions
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