Opinion · Alabama Court Opinions

ROBERTS v. TURNER, 22 Ala. App. 433 (1928)

ROBERTS v. TURNER., 116 So. 506 (Ala. Ct. App. 1928)

Type
Opinion
Court
Alabama Court Opinions
Jurisdiction
Alabama
Date
1928-04-17
Topic
general

ROBERTS v. TURNER, 22 Ala. App. 433 (1928) 116 So. 506 ROBERTS et al. v. TURNER. 8 Div. 621.Court of Appeals of Alabama. April 17, 1928.

Citator

UpLaw has not yet analyzed ROBERTS v. TURNER, 22 Ala. App. 433 (1928). The absence of a flag is not a finding that it is good law.

ROBERTS v. TURNER,22 Ala. App. 433(1928)
116 So. 506
ROBERTS et al. v. TURNER.
8 Div. 621.
Court of Appeals of Alabama.
April 17, 1928.
Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.

Assumpsit by W. B. Turner against S. S. Roberts, Hayes Hooks, and others. From a judgment for plaintiff, the named defendants appeal. Appeal dismissed.
James C. Roberts, of Florence, for appellants.

If there was error in the failure of the clerk to give notice of appeal, it was without injury. The motion to strike should not be granted.

O. B. Hill, Jr., and Mitchell Hughston, all of Florence, for appellee.

The cause having been submitted without notice having been given as provided by statute, or given by the court itself, the court had no jurisdiction over the rights of the other defendants. Code 1923, § 6143; Sherrod v. McGruder,209 Ala. 260,96 So. 78.
SAMFORD, J.
This was a suit by one accommodation indorser against eleven others,Page 434all of whom had indorsed the note of "Royal Order of Lyons" and payable to Alabama Trust Savings Bank. The plaintiff claims that he paid the note which was thereupon transferred to him and upon which he brought suit against his eleven co-indorsers for eleven-twelfths of the face of the note. Judgment by default was entered against eight of the defendants. Three litigated and two appealed, but no summons was issued to defendants, who did not appeal, as is required by section 6143 of the Code of 1923, nor was summons issued from this court before submission of the cause so as to have all parties to the action before this court, so that their rights might be determined in this appeal.

Appellee moves to dismiss the appeal. Under the decisions of the Supreme Court construing the above section of the Code, there is here a want of proper parties at the time of submission and the appeal must be dismissed. Sherrod v. McGruder et al.,209 Ala. 260,96 So. 78; L. N. R. R. v. Shikle,206 Ala. 494,90 So. 900. The correctness of the opinion in Sherrod v. McGruder, supra, has been recognized in Morrison v. Chambers,212 Ala. 574,103 So. 666; Rountree v. Saterfield et al.,211 Ala. 464,100 So. 751; Henderson v. Henderson,210 Ala. 73,97 So. 353; and McCreight v. Porter,210 Ala. 50,97 So. 53.

The motion is granted, and the appeal is dismissed.

Appeal dismissed.