Ivey v. Perry

97 Ala. 583

• Court: Supreme Court of Alabama
• Decided: July 1, 1892
• Status: Published

Opinion

HEAD, J.

— The summons and complaint, in this cause, were sued out on the 28th day of May, 1892, and served on three of the defendants, on the 31st day of May, 1892, and returned “not found” as to the other defendant. The following term of the Circuit Court, to which the summons was returnable, convened on the second Monday in June, 1892, — that being the 13th day ©f the month. During that term, to-wit, on July 20, 1892,-the plaintiff discontinued the action as to the defendant not served, and took judgment by default against the other defendants for the lands sued for, damages and costs. This judgment was Unauthorized, for the reason that the service was had less than twenty days before the commencement of the term. — Code, § 2731. Moreover, the record fails to show that proof was made of defendant’s possession of the premises, or any part thereof, at the commencement of the suit, without which there could be no recovery of costs. — Code, § 2708. The judgment is reversed and the cause remanded.

Reversed and remanded.