Darwin v. Tuscumbia, Courtland & Decatur Rail Road

4 Port. 160

Opinions

HOPKINS J.

— In this case, the plaintiffs in error commenced their action by a writ, against Benjamin Sherrod, president, and H. W. Rhodes, James Fennell, James T. Sykes, and several other persons, as directors of the Tuscumbia, Courtland and Decatur Rail Road Company.

The endorsement on the writ contains a statement of a cause of action against the defendants to the action;

The declaration was filed against the Tuscumbkq Courtland and Decatur Rail Road Company,- and this is the corporate name of a company which has a charter from the State.

During the next term of the. Circuit Court of Morgan county, after that to which the writ was return able, the four persons, whose names have been mentioned, appeared, by their attorney, and moved the Court to quash the writ. The motion was sustained, and the writ quashed. The following judgment was given by the Court — ■

“ It is, therefore, considered, that the defendants go hence, and recover of the plaintiffs their costs, herein expended.”

The writ is against persons, and the declaration against a corporation. The caséis governed by the same principle, which would apply, if the declaration were against different persons from those, who were sued by the writ. Instead of a motion to quash ■ the writ, the defendants ought to have asked for a judgment of non-suit against the plaintiffs, because there was no declaration against the defendants to the writ. The judgment which the Court rendered, terminated the suit against them, and allowed them costs against the plaintiffs. These consequences would have" folio wed a judgment of non-suit, to which the defendants to the writ were entitled. As the judgment which was given, has the same effect on the plaintiffs, that the proper judgment would have, they have no right to complain of what does them no injury.

It does not appear, from the record, that the Circuit Court acted upon the case in the declaration. As the corporation had not been brought into Court, by the service of process, and had never appeared, the case in the declaration was not one, in which the Court ought to have given a judgment for the plaintiffs.

Let the judgment be affirmed.