Leavitt v. Dawson , 4 Ala. 335 ( 1842 )

GOLDTHWAITE, J.

The bond which the claimants in this case gave, preparatory to the assertion of their claim, is made payable to the sheriff, and does not state the description of the property levied on. It is therefore defective, and as the motion was made at the first term, the claim should have been dismissed, unless a sufficient bond was then executed. [Bradford v. Dawson, 2 Ala. Rep. 203.] As the plaintiffs were not protected as intended by the statute, they had the right to refuse to proceed further in the cause, and were improperly non-suited.

It is not important to consider whether the term non-suit is the most proper to designate this mode of action by the Court, because the effect to the plaintiffs is the same as a judgment of of non pross, which is the technical judgment in all cases where the plaintiff refuses to proceed further with his suit. In this case his refusal to proceed was warranted by the previous error of the Court, and it cannot be presumed that he has submitted or consented to cease his proceedings.

Let the judgment be reversed and remanded, in order that the claim may be dismissed unless a sufficient bond is given.