Ivey, et al. v. Perry, pro ami

Ivey, et al. v. Perry, pro ami. Ejectment. 1. Service of process; premature judgment. — When the summons is served on the'31st of May, and the term of the court began on the ,13th day of the following month, a judgment by default rendered at such term is unauthorized, and will be reversed on appeal. 2. Costs in ejectment not recoverable, unless defendant, shown to be in. possession. — When there is a judgment by default in an action of ejectment and the record fails to show that there was proof of possession by the defendant of the premises, or part of the premises sued for, it is erroneous to render a judgment for costs against the defendant. Appeal from Montgomery Circuit Court. Tried before Hon. John P Hubbard. Tompkins & Trox, for appellants, cited Code, §§ 2731, 2733, 2708; Sims v. Thompson, 30 Ala. 158. Stallings & Wilkinson, for appellee. [MAJORITY — HEAD, J.] 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.