McBeath v. Spann

7 Ala. 201

Opinion

COLLIER, C. J.

— It is insisted that by suing out an alias writ against Tatum, the service of the original as to him was waived, that having failed to appear, he was not before the Court so as to subject him to its judgment. There is no objection to the form of the alias writ; it would have been proper for the clerk to have indorsed on it how far the original had been executed, merely as a direction to the sheriff in the performance of his duties. But this was not an essential requirement. The return of “ not found” as to a defendant, who had been already served with process, cannot relieve him from the legal effect of what had been done; or undo the regular service of the writ. All the parties had been duly notified of the pendency of the action, and having failed to appear, were liable lo a judgment by default, consequently the judgment of the County Court is affirmed.