Renfro & Andrews v. Willis , 67 Ala. 488 ( 1880 )

STONE, J.

— The present record is confused in its statements. The complaint is against Forney Renfro alone. The summons is against Forney Renfro and Joseph Andrews, styling them partners using the firm name of Renfro & Andrews. The sheriff returned the process executed “by leaving a copy of the within summons and complaint with Forney Renfro and Renfro & Andrews, defendants.” Renfro alone pleaded. The judgment-entry in the margin states the case, “ Mary S. Willis v. Renfro & Andrews,” and recites that the parties came by their attorneys, and renders judgment on verdict against the defendants. We feel bound to hold that Renfro alone was sued, for he alone is mentioned in the complaint. Rendering judgment against the defendants, in the plural, was a clerical misprision in the court below, which would have been corrected on motion in that court. It furnishes no ground for reversal, as the judgment, in legal effect, is, and can only be, against the party sued. Execution can go only against Renfro.— Grayham v. Roberds, 7 Ala. 719; Del Barvo v. Br. Bank, 12 Ala. 238; Savage v. Walshe, 26 Ala. 619.

There are two reasons why we can not consider the demurrer. First, it was interposed after a plea to the merits had been filed; and second, it is no where shown that the Circuit Court ruled on the demurrer.— Gayle v. Smith, Min. 83; Bean v. Chapman, 62 Ala. 55.

Affirmed.