Mobile & Montgomery Railroad v. Smith

51 Ala. 329

Opinion

PETERS, C. J.

One of the objections to the judgment in this case is, that there was no service of the summons and complaint on the appellant, Harville, and no appearance on his behalf, or by him in person. Whether a defendant has been served with process or not, or whether he has appeared by attorney or in person or not, must be shown by the record. In this case, there was a substitution of the summons and complaint after service, on motion for that purpose. In this substituted record there is this entry, next after the receipt of the summons and complaint by the sheriff; that is to say: “ Executed by serving a copy of this summons and complaint on Lemuel Harville, February 25th, 1866.” (Signed) “ Wm. M. Strange, sheriff.” Besides this, the record also shows that the suit was commenced on February 18,1866. There was no objection to this entry of service in the court below; and there is nothing in the transcript that shows that it was untrue. It cannot, then, be permitted to be contradicted. This shows that Harville was properly served with process, and was properly in court. Where it appears from the substituted record that both the defendants had been served with process, before the destruction of the original record, it is not necessary that the order of substitution should show that the defendants had notice of the motion to make the substitution. After the service of process, the parties are in court, and so continue until the cause is disposed of. Thomason v. Groce, 42 Ala. 431.

2. The objection that the record does not show a judgment by default is not such a defect as will justify a reversal on that account. It is but a formal defect. It was so settled at a very early day by this court. It was said in a very early case, where this very point was presented: “ It certainly cannot constitute error, for a jury to ascertain the damages instead of the clerk. Nor is it at all material, that an interlocutory judgment by default, with an order for a writ of inquiry, should precede the empanelling of the jury. This interlocutory judgment and order are altogether formal; no writ of inquiry in fact issues, but a jury is sworn, of those in regular attendance at the term, to assess the damages. Substantial defects only can be reached in this court, and not formal ones; and there being nothing substantial in this objection, it cannot be sustained.” Brooks v. Maltbie, 4 S. & P. 96, 103. When the court has jurisdiction, this is still the law, and it has already been shown that it has jurisdiction in this case. “No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contains a substantial cause of action.” Rev. Code, § 2811.

The verdict is for the plaintiff, upon the issue submitted to them, and they assess the value of the cotton sued for and the damages. For the sums of money thus assessed by the jury, there was a judgment rendered by the court against both of the defendants. This was in strict conformity with the complaint. Such a judgment is correct.

The judgment of the court below is affirmed.