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40 Ala. 583

Dothard v. Teague

Supreme Court of Alabama

Decided January 15, 1867

Supreme Court of Alabama · decided 1867-01-15

Tried before the Hon. John Henderson. The appellant in this ease obtained a judgment in said circuit court, against the appellee, on the 28th February, 1866. The action was in trover, for the conversion of a “copper still,” and was commenced on the 16th September, 1862; the summons being executed on the 20th September, by one J. B. Watson, as special deputy of the sheriff. The judgment was by default, with writ of inquiry, which was executed,on the same day.

Relies on White v. Ryan · Shields v. Burns · Elliott v. Cook

Good law ✅— No negative treatment on recordhow we know

Decided 1867-01-15

How this case has been cited

Cited by 6 later decisions — most recently May 1924

6 state decisions

301867187018801890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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BYRD, J.

¶1The petition for a new trial, when subjected to the test of the principles and rulings announced in the following cases, cannot be sustained; and the demurrer thereto should have been.— White v. Ryan & Martin, 31 Ala. 400; Shields v. Burns, 31 Ala. 535; Elliott v. Cook, 33 Ala. 490; Stewart v. Williams, 33 Ala. 492. If there was any accident, mistake, surprise, or fraud, which would authorize the granting a new trial, still the appellee does not show that he was toithout fault. If he made any mistake, it was one of law, and not of fact; and he states facts in the petition which should have put him on his guard, and made him diligent in making inquiry as to the pendency of the suit, and in preparing for its defense.

¶22. The court below allowed the appellee to amend his petition. It had the authority to do so, and we can perceive no error in the action of the court in this respect. Like all other legal proceedings, it is within the power of the court to allow an amendment of them before trial, unless there is some law or rule of practice prohibiting; and we know of none which inhibits it in such a case as this. — Vide cases cited above.

¶3For the error pointed out, the judgment must be reversed, and the cause remanded for further proceedings.

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