Windham v. National Fertilizer. Co.

99 Ala. 578

• Court: Supreme Court of Alabama
• Decided: November 15, 1892
• Status: Published

Opinion

STONE, C. J.

-The return of the sheriff in this case shows that service of the summons and complaint was perfected on all the defendants except one, Z. McKinney. As to him the process was returned “not found.” Judgment by default was taken and entered up against all the defendants. This was error which compels a reversal of the judgment.— Smith v. Winthrop, Minor, 425; Driver v Spence, 3 Ala. 98; Granberry v. Welborn, 4 Ala. 18; Faver v. Briggs, 18 Ala. 478; Childress v. Taylor. 33 Ala. 185; Parker v. Parker, 39 Ala. 347. But as the cause of action sued on is several as well as joint, reversing the judgment as to McKinney does not impair or affect it as to the other defendants who were served with the summons. The only effect of this reversal is to strike his name from the list of defendants against whom judgment was' entered, and leave it operative against the others.—Lucy v. Beck, 5 Porter 166.

Beversed in part, but not remanded.

The clerk will certify this opinion and the judgment to to Circuit Court.