Childress v. Taylor

Supreme Court of Alabama

Childress v. Taylor

33 Ala. 185

CourtSupreme Court of Alabama

DecidedJune 15, 1858

StatusPublished

Cited by2 cases

This text of 33 Ala. 185 (Childress v. Taylor) 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

Childress v. Taylor, 33 Ala. 185 (Ala. 1858).

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Opinion

"WALKER, J.

A motion is made to dismiss the appeal in this case, upon the ground that the appellant, who is the principal in the appeal bond, is a feme covert. The ■Code, in sections 1987, 1998, and 2131, authorizes proceedings at law for and against a feme covert in her own name; and section 3019 requires the appellant to give the appeal bond. To deny to her the power to give an appeal bond in such cases, where her appearance is ■neither by next friend nor guardian, would involve a ■denial of the right of appeal accompanied by a supersedeas. The Code must, therefore, be understood to clothe a married woman with the power of giving an appeal bond.

The sheriff’s return shows that there was no service upon the feme covert defendant. It negatives the fact of the leaving of a copy of the summons and complaint with her, as required by section 2165 of the Code. There was no appearance by the feme covert defendant. The judgment, being rendered against her without a service by her or an appearance, is erroneous.—Smith & Howell v. Winthrop, Minor, 425; Lucy v. Beck, 5 Porter, 166; Griffin v. Rayfield, 19 Ala. 27; Faver v. Briggs, 18 Ala. 478; Kennedy v. Millsap, 25 Ala. 570; Dew v. Cunningham, 28 Ala. 466.

Judgment reversed, and cause remanded.

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"WALKER, J.

A motion is made to dismiss the appeal in this case, upon the ground that the appellant, who is the principal in the appeal bond, is a feme covert. The ■Code, in sections 1987, 1998, and 2131, authorizes proceedings at law for and against a feme covert in her own name; and section 3019 requires the appellant to give the appeal bond. To deny to her the power to give an appeal bond in such cases, where her appearance is ■neither by next friend nor guardian, would involve a ■denial of the right of appeal accompanied by a supersedeas. The Code must, therefore, be understood to clothe a married woman with the power of giving an appeal bond.

The sheriff’s return shows that there was no service upon the feme covert defendant. It negatives the fact of the leaving of a copy of the summons and complaint with her, as required by section 2165 of the Code. There was no appearance by the feme covert defendant. The judgment, being rendered against her without a service by her or an appearance, is erroneous.—Smith & Howell v. Winthrop, Minor, 425; Lucy v. Beck, 5 Porter, 166; Griffin v. Rayfield, 19 Ala. 27; Faver v. Briggs, 18 Ala. 478; Kennedy v. Millsap, 25 Ala. 570; Dew v. Cunningham, 28 Ala. 466.

Judgment reversed, and cause remanded.

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Bluebook (online)

33 Ala. 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childress-v-taylor-ala-1858.

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