Elyton Land Co. v. Morgan & Co.

88 Ala. 434

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

STONE, C. J.

There is no merit in the present appeal. The objection sought to be raised by demurrer, can not be presented in that way. Demurrer raises the question of the sufficiency of the complaint, and the present complaint is sufficient. If the affidavit to the account was insufficient, that could be raised when it was offered in evidence.- — Code of 1886, § 2773. The defect, if any, went to the evidence, not to the pleadings. The demurrer was frivolous.

But, if the demurrer had been well taken, it could not avail the appellants. It was not enough that a sufficient issue was formed. Counsel should have been present to invoke the action of the court, and to represent his client. A demurrer found in the file, and neither called to the attention of the court, nor ruled on, must be regarded as abandoned. And parties permitting their suits to be tried in their absence, and without counsel, can not complain if they are treated as in default. — Lehman Durr & Co. v. Hudmon, 85 Ala. 135.

The objection that the judgment was by default, instead of nil dicit, relates to a mere matter of form, and is without merit. — Atlantia Glass Co. v. Paulk, 83 Ala. 405; McLaren v. Anderson, 81 Ala. 106,

Affirmed,