Drinkard v. Premier Refining Co.

Drinkard v. Premier Ref. Co., 90 So. 54 (Ala. Ct. App. 1921)

Court: Alabama Court of Appeals · State Appellate Courts
Decided: April 5, 1921
Docket: No. 8 Div. 724.
Judges: Samford
Citations: 90 So. 5418 Ala. App. 1091921 Ala. App. LEXIS 91
Disposition: Reversed and remanded.

Cited by 2

Headnotes

Judgment 126(1) — A default judgment on accounts, neither in writing nor verified, and without intervention óf jury, must be reversed. Where a complaint claimed for goods sold and delivered, and also on open account, neither ' of which counts was an instrument in writing or verified account, ascertaining plaintiff’s demands, in view of Code 1907, §§ 3970, 3971, 5325, 5356, judgment on default, without the intervention of a jury, must be reversed.

Summary

Appeal from Morgan County Court; W. T. Lowe, Judge. Assumpsit by the Premier Refining Company against T. E. Drinkard. There was judgment by default, and defendant appeals. The court erred in rendering judgment with proof of the debt. 25 Ala. 451; 128 Ala. 332, 29 South. 10; 38 Ala. 344; 67 Ala. 252; 76 Ala. 373; 163 Ala. 594, 50 South. 1034; 156 Ala. 573, 47 South. 307. .Brief of counsel did not' reach the Reporter.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Samford

SAMFORD, J.

The complaint-was in two counts, claiming for goods sold and delivered and on open count. Neither count was an instrument in writing or verified • account ascertaining the plaintiff’s demands. Code 3970 and 3971, §§ 5356, 5325. And the judgment being by default, without the intervention of a jury, the judgment is reversed and the cause remanded. Rhea v. Holston Salt & P. Co., 59 Ala. 182 ; Parsons Lbr. Co. v. West Co. et al., 163 Ala. 594 , 50 South. 1034 .

There are other questions in the record, but we think a decision of them is unnecessary.

Reversed and remanded.

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How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 2 cases

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Relies on it most ⓘ

Garnett v. Scott92 So. 408 (Ala. 1922)
Frazier v. Dismuke118 So. 227 (Ala. Ct. App. 1928)

Most recent

Frazier v. Dismuke118 So. 227 (Ala. Ct. App. 1928)
Garnett v. Scott92 So. 408 (Ala. 1922)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

Depth	Case	Cited by
	Parsons Lumber Co. v. West-Steagall G. & M. Co., 50 So. 1034 (Ala. 1909)	6
	Rhea v. Holston Salt & Plaster Co., 59 Ala. 182 (1877)	3

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