Reynolds v. Simpkins , 67 Ala. 378 ( 1880 )

SOMERYILLE, J.

— In Staggers v. Washington, 56 Ala. 225, it is held, that where an attachment is commenced before a justice of the peace, and an appeal is taken to the Circuit Court, no objection can be there raised to the regularity of the proceedings, which was not taken before the justice’s court, although, if presented in time, it might have been fatal to the proceedings. — Code, (1876) § 3693. If there is any force in the objections urged, as presented by the motion in the City Court to quash, or the one to dissolve the attachment proceedings in this case, they came too late. — City Court of Selma v. Stewart, 67 Ala.

The complaint filed in the City Court did not introduce a new case, or cause of action, but was clearly a mere amplification of the informal statement of the same cause of action made in the primary court, in which the attachment was commenced.

It is insisted by appellant that there has been a discontinuance of the entire case by reason of the action of the plaintiff in the City Court. The judgment entry contains the following recital: “ It appearing from the evidence introduced on the trial of the cause, that George Reynolds was .a minor, at the time the several contracts sued on, were made, and still is a minor, thereupon, on motion of the plaintiff, leave is granted to the plaintiff to amend his complaint by striking out the name of said George Reynolds as a part] defendant from the writ of attachment and the complaint; which is done against the objection of the defendants, and the defendants excepted to the ruling of the court.”

The rule is, that, where several defendants are sued and served with process, a discontinuance as to one of them, without a sufficient reason therefor, operates as a discontinuance of the whole action.— Whitaker v. Van Horn, 43 Ala. 255; 1 Chitty Pl. 578.

When a plea is filed setting up infancy, bankruptcy, coverture, or other like personal defense, there can be no question of the proposition, that the plaintiff can admit the truth of the plea, and, on application to the court, discontinue as to the defendant who interposes such defense, without prejudice to the status of his action against the other co-defendants. Cuyler v. Coats, 10 How. Practice Rep. 141; 1 Chitty Pl. 578.

We see no reason for construing this mere technical rule of pleadings so as to embarrass judicial proceedings and operate with harshness upon litigants. We think, where the evidence introduced upon the trial of a cause shows, to the satisfaction of the plaintiff’s counsel and the court, that there is no legal cause of action against one of several defendants by reason of a personal defense, as for example, that of infancy or coverture, even though it is not formally presented by plea, the plaintiff may, on motion, discontinue as to such defendant without prejudice, so far as the others are concerned. — Pell v. Pell and Wife, 20 I. 126.

The judgment of the Selma City Court is affirmed.