Birmingham Dry Goods Co. v. Bledsoe

Supreme Court of Alabama

Birmingham Dry Goods Co. v. Bledsoe

113 Ala. 418

CourtSupreme Court of Alabama

DecidedNovember 15, 1896

StatusPublished

Cited by3 cases

This text of 113 Ala. 418 (Birmingham Dry Goods Co. v. Bledsoe) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Birmingham Dry Goods Co. v. Bledsoe, 113 Ala. 418 (Ala. 1896).

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Opinion

McCLELLAN, J.

The word “mesne” signifies mid-fdle, intervening, intermediate. — 15 Am. & Eng. Encyc. of Law, p. 386.

Process is the mandate of a court to its officer commanding him to perform certain services within his official cognizance. — 19 Am. & Eng. Encyc. of Law, p. 222. “Mesne process,” strictly speaking, embraces all writs and orders of the court, necessary for the carrying-on of the suit, after it has been instituted, from and after the summons, which is original process, up to, but not including, those writs which are. necessary to secure the benefits of the suit to the successful party, which are “final process.” But in the sense in which the phrase “mesne process” has come to be used, and is used in section 3106 of the Code, it embraces all writs preceding execution, and describes any and all writs except final process.-State v. Ferguson, 31 N. J. L. 291; Arnold v. Chapman, 13 R. I. 586. Rapalje & Lawrence say: “In civil actions, process is of two kinds : (1) Against a de[420]*420fendant,” as a summons or writ of execution. “(2) Process against persons not parties to the action, e. g. process to summon jurors, witnesses, &c.”

It is clear that a subpoena for a witness in an action is “mesne process” within the foregoing definition. That writ is, therefore, within the letter of section 3106 of the Code authorizing summary judgment for failing “to execute summons, attachment, or other mesne process,” &c. It is as essential to the administration of the law that subpoenas should be executed as that summonses and attachments should be executed ; and as necessary in the one case as in the others that the officer should be spurred to diligence by a penalty for the want of it. Subpoenas are, therefore, also within the spirit and intent of the statute ; and the circuit court erred in holding to the contrary.

The judgment is reversed, and a judgment will be here entered overruling the demurrers to the motion for summary judgment.

Reversed, rendered and remanded.

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McCLELLAN, J.

The word “mesne” signifies mid-fdle, intervening, intermediate. — 15 Am. & Eng. Encyc. of Law, p. 386.

Process is the mandate of a court to its officer commanding him to perform certain services within his official cognizance. — 19 Am. & Eng. Encyc. of Law, p. 222. “Mesne process,” strictly speaking, embraces all writs and orders of the court, necessary for the carrying-on of the suit, after it has been instituted, from and after the summons, which is original process, up to, but not including, those writs which are. necessary to secure the benefits of the suit to the successful party, which are “final process.” But in the sense in which the phrase “mesne process” has come to be used, and is used in section 3106 of the Code, it embraces all writs preceding execution, and describes any and all writs except final process.-State v. Ferguson, 31 N. J. L. 291; Arnold v. Chapman, 13 R. I. 586. Rapalje & Lawrence say: “In civil actions, process is of two kinds : (1) Against a de[420]*420fendant,” as a summons or writ of execution. “(2) Process against persons not parties to the action, e. g. process to summon jurors, witnesses, &c.”

It is clear that a subpoena for a witness in an action is “mesne process” within the foregoing definition. That writ is, therefore, within the letter of section 3106 of the Code authorizing summary judgment for failing “to execute summons, attachment, or other mesne process,” &c. It is as essential to the administration of the law that subpoenas should be executed as that summonses and attachments should be executed ; and as necessary in the one case as in the others that the officer should be spurred to diligence by a penalty for the want of it. Subpoenas are, therefore, also within the spirit and intent of the statute ; and the circuit court erred in holding to the contrary.

The judgment is reversed, and a judgment will be here entered overruling the demurrers to the motion for summary judgment.

Reversed, rendered and remanded.

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113 Ala. 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birmingham-dry-goods-co-v-bledsoe-ala-1896.

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