Ratliff v. Allgood

72 Ala. 119

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

BBICKELL, O. J.

It is true, as insisted by the counsel for the appellants, that when parties pursue a statutory remedy, in its character summary, and in derogation of the mode of procedure at common law, there must be strict conformity to the statute, and the record should ■ affirmatively disclose every fact necessary to entitle the party to the remedy — should disclose a case within the statute, and that the remedy is pursued by a party having the right, and against a party subject to it. Nor can such a remedy be, extended by construction beyond the terms of the statute giving it. But, if the parties appear, and, without objection, proceed to a trial on the merits, before a court having jurisdiction of the subject-matter, all right to take advantage of the mode or form of proceeding is waived.—Curry v. Bank, 8 Port. 360; Smith v. Bank, 5 Ala. 26; Broughton v. Robinson, 11 Ala. 929; King v. Armstrong, 14 Ala. 293; Rutherford v. Smith, 27 Ala. 417.

The appellants, who were defendants in the court below, appeared in obedience to the notice that judgment against them would be moved for, and, without any objection to the mode or form of the proceeding, pleaded to the merits; and the issues were tried by a jury, upon whose verdict the judgment was rendered. The jurisdiction of the court, of the subject-matter of suit, is apparent, and is not disputed. The objections now interposed to the regularity of the proceedings, if of any force, the appellants voluntarily waived, and they furnish no warrant for a reversal of the judgment.

Affirmed.