Blackman v. Moore-Handley Hardware Co.

106 Ala. 458

• Court: Supreme Court of Alabama
• Decided: November 15, 1894
• Status: Published

Opinion

HARALSON, J.

— 1. The summons is against “G. W. Blackman and T. G. Blackman, Jr., a former pai'tnex1ship doing business under the firm name of Blackman & Son.” The complaint, in its caption, is against “Blackman & Son, a firm composed of G. W. Blackman and T. G. Blackman, Jr.,” and in its body, makes claim of the defendants. The summons and complaint were returned by the sheriff as executed onG.W. Blackman and T. G. Blackman, Jr. The judgment entry, with the same caption as the complaint, recites a recovery against the defendants ; and the execution issued on said judgment is against G. W. Blackman anclT. G. Blackman, Jr. The pleadings and the process with the return thereon, may be looked to as indicating who were-before the court as plaintiffs and defendants; and when the term “defendants”, as used in the present judgment entry is referred to the previous proceedings in the cause, it is plain enough that the appellant, G. W. Blackman, with the other co-defendant, T. G. Blackman, Jr., was, as an individual, included in said proceedings and judgment, as a party bound thereby. — Bolling & Son v. Speller, 96 Ala. 270, and authorities there cited. There is no conflict between the case cited, and the later one of Baldridge v. Eason, 99 Ala. 516. In that case the summons was not, as was claimed, executed at all, upon either of the defendants ; there was nothing in the body of the complaint to show that the members of the firm were sued, and the judgment entry itself, as was held, was in terms against the partnership, only.

2. The evidence shows-without dispute, that claimant had abandoned his homestead. He himself deposed that before the levy, which was on the 16th of October, 1891, he had married the second time, and his own home being too small to accommodate his wife’s and his own family, he moved to hers, allowed his widowed daughter to occupy his house until she built one for herself, which was more than a year before the levy, when he rented the premises to one Yelverton for two successive years, that the first year’s lease to him expired before the levy, and said Yelverton was in possession and control at the date of the levy; and at the expiration of his second year’s lease, claimant and his family moved into the house and have continued to live there since. The claimant was allowed to testify, without objection, that he had expected to move back into his own house, after his daughter completed hers, but he shows he did not carry 'his expectations into effect, but actually rented the premises for two years thereafter. He must be held to have abandoned his homestead —Fuller v. Whitlock, 99 Ala. 411; Pollock v. Caldwell, 94 Ala. 149; Scaife v. Argall, 74 Ala. 474.

3. There was nothing lathe motion of claimant to set aside the judgment on account of an alleged mistake. The bill of exceptions shows there was no mistake and the judgment was entered in exact accordance with the agreement of counsel for claimant.

There was no error in the rulings of the court.

Affirmed.