Stewart v. Goode & Ulrick

29 Ala. 476

• Court: Supreme Court of Alabama
• Decided: June 15, 1856
• Status: Published

Opinion

WALKER, J.

The defendant was brought into court by an acknowledgment -of service, which was proved. The judgment entry recites, that the parties came by their attorneys ; thus showing, that the defendant was not only served with process, but actually came into court. The defendant cannot be permitted to revise the action of the court below in allowing the amendment of the complaint, when he was actually before the court in which the amendment was made, made no objection, and now for the first time questions the correctness of the ruling of the court in reference to the amendment. — Bryan v. Wilson, 27 Ala. 214.

The complaint shows a substantial cause of action ; and although the defects attributed to it by the appellant might have been available on demurrer, advantage cannot be taken of them in this court, when no objection was in any way taken in the court below. The law has been so settled by a previous decision of this court, declaring the effect of section 2405 of the Code. — Blount v. McNeill, at this term.

As the defendant appeared by his attorney, and did not plead, the judgment was properly by nil dicit. — Comyn’s Digest, vol. 6, 147.

The judgment of the court below is affirmed.