Green v. Jones Bros.

Green v. Jones Bros. Action of Assumpsit. 1. Judgment by default; improperly rendered after plea interposed.— Judgment by default, being a judgment for the want of an appearance, is improperly rendered after the defendant has interposed a plea in bar. 2. Irregular judgment. — In a suit brought in the name of one as the surviving partner of a late firm, a judgment entered in favor of the firm is irregular. Appeal from the Circuit Court of Russell. Tried, before the Hon. J. M. Carmichael. This was an action brought by Rufus Jones, as surviving partner of the late firm of Jones Brothers, against Cherry Green; and counted on an open account for materials furnished-for building a house, and sought thereby to fasten a material-man’s lien on the house and the land on which the house was situated. The facts pertaining to the only questions presented on this appeal are sufficiently stated in the opinion. There was judgment by default in favor of Jones Brothers. The defendant appeals, and assigns the rendering of this judgment as error. L. W. Martin, for appellant, cited Griggv. Gilmer, 54 Ala. 425. No counsel marked for appellee. [MAJORITY — McCLELLAN, J.] McCLELLAN, J. This action is prosecuted by Rufus Jones as surviving partner of the firm of Jones Brothers. The complaint is in debt on an open account. Defendant, Green, interposed the following plea : “* * * And now comes the defendant and, for plea and answer to the plaintiff’s cause of action, says that she is not indebted to the plaintiff in the form and manner complained of, nor is she indebted to the plaintiff in any amount; and of this she puts herself upon the country.” This plea was filed October 8th, 1892. On October 20th, 1892, the cause was continued by consent. On April 25th, 1893, a judgment by default was rendered against the defendant in favor of Jones Brothers, with writ of inquiry. The defendant having interposed, her plea, it was manifestly erroneous to enter judgment by default against her. — Grigg, Adm’x. v. Gilmer, 54 Ala. 425. The judgment was also irregular in that it was entered in favor of Jones Brothers, the suit being in the name of Rufus Jones alone as surviving partner of the late firm of Jones Brothers. Reversed and remanded.