Beard v. Branch Bank at Mobile

8 Ala. 344

Opinion

ORMOND, J.

It has been repeatedly held, that in these summary proceedings, the notice has not the effect of process, nor is a suit pending, until a motion for judgment is submitted to the Court upon it. [See Lyon v. The State Bank, 1 Stew. 442; Bondurant v. Woods & Abbott, 1 Ala. Rep. 543; Griffin v. State Bank, 6 ib. 911.] It follows, that the omission to proceed against one of the defendants, cannot work a discontinuance of the motion. The dismissal as to Godbold, was unnecessary, but cannot prejudice. It amounts merely to a declaration, that the Bank did not desire to proceed against that person.

Let the judgment be affirmed.