Evans Marble Co. v. McDonald & Co.

142 Ala. 130

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

TYSON, J.

-The complaint counts upon a joint cause of action against all the defendants named in it. The record shows that each of the several defendants wras served with process.

Plaintiff, without sufficient reason therefor, amended its complaint by striking out one of the defendants. Thereupon the other defendants moved the court to enter a discontinuance of the entire action. The court erroneously refused the motion. — Jones v. Englehardt, 78 Ala. 506, and cases cited.

However, on a subsequent day of the term, after plaintiff had introduced evidence tending to show an improper joinder of the defendant discharged by the amendment, and a liability on the part of those who had claimed the discontinuance, the' court, acting upon another motion made by them discontinued the action.

While it is true the statute of amendments authorizes the striking out of a party defendant who has been served with process, (§3331 of Code) it has been uniformly held that this can only be done, in cases of this character, after a misjoinder has been shown. — Bachus v. Mickle, 45 Ala. 445; Mock v. Walker, 42 Ala. 668, 670; Masterson v. Gibson, 56 Ala. 56; Reynolds v. Simpkins, 67 Ala. 378.

The effect of the amendment was to discontinue the case — to put an end to it. The parties were, thereby out of court.- — Curtis v. Gaines, 46 Ala. 455, 459. This being true, unless the discontinuance was waived by defendants, the court was without jurisdiction to proceed with a hearing of the cause. We do not find that there was a waiver. On the contrary, the record shows affirmatively that defendants persistently insisted upon their right to have the court enter an order showing the discontinuance.

Affirmed.

McClellan, C.J., Haralson and Dowdell, J.J., concurring.