South & North Alabama Railroad v. Seale

59 Ala. 608

Opinion

BBICKELL, C. J.—

There was no error in overruling the motion to vacate the judgment of the justice because of a want of evidence of service of process on the appellant. The only defence allowable in the Circuit Court was to the merits of the case.—McCrory v. Smith, 1 Ala. 157; Patterson v. Grace, ib. 264. The statement or complaint was certainly demurrable. But if a demurrer had been interposed, its defects could have been cured by amendment. In Thompson v. Pierce, 3 Stew. 427, it was decided that in the trial of an appeal from the judgment of a justice of the peace, as the statutes intend that the merits only shall be investigated, this court on error, would disregard defects in the complaint, or statement of the cause of action, which could in the Circuit Court be cured by amendment, if by demurrer or otherwise the attention of the court had been called to them.

It is not shown by the bill of exceptions, that the charges requested were in writing; unless it appears affirmatively, that charges were in writing, a refusal of them is not on error revisable.— Crosby v. Hutchinson, 53 Ala. 5; Hollingsworth v. Chapman, 54 Ala. 7.

Let the judgment be affirmed.