Hobson & Sons v. Emanuel

8 Port. 442

• Court: Supreme Court of Alabama
• Decided: January 15, 1839
• Status: Published

Opinion

GQIfDTHWAITE, J.

— if the judgment of the Circuit court was supported only by the acknowledgment of service, this, without proof, would he insufficient to sustain it, as decided by this court in Welch vs. Walker et ux. (4 Porter, 120;) but it_ is disclosed by the record; that at the trial term, “ came the parties, by their altor* rúes, and thereupon came a jury,” &c. Similar entries have been held sufficient evidence of the appearance of parties, and to dispense.with the necessity of actual service of process— (Gilbert vs. Lane, 3 Porter, 367; Lucy et al. vs. Beck, 5 Porter, 167.) The first assignment is therefore not supported by the record.

The second assignment can avail nothing. One of the defendants to the action, alone thought proper to contest the suit, and his defence did not extend to the merits of the cause. After the determination of the issue on thé plea in abatement, the actiou remained wholly undefended ; and, although it would have been more regular, to have entered a formal judgment of nil dicit, yet there is no substantial error in that wh cli was rendered. It was the privilege of the plaintiff to insist, that the jury should assess his damages, when they ascertained the issue in his favor, but the omission to do so, gave the defendants no rights, or if they were thereby placed in a condition to plead to the merits, they have not done so, and as no defence was interposed, after the determination of the only issue before4he jury, the court properly rendered judgment-for.the amount due on the notes.

The ame nled judgment is not attempted to be made the subject of revision, and notice of it is therefore unnecessary. Let the judgment be affirmed.