Eaton v. P. W. & T. R. Harris

42 Ala. 491 | Ala. | 1868

JUDGE, J.

1. The right to the office of clerk of the circuit court can not be determined on a motion to quash the leading process of a suit which has been issued by the incumbent in his official capacity. The proper mode of testing the right of the incumbent to the office, is by a direct proceeding for that purpose. — See opinion in Harris et al. v. Parker, Adm’r, on the motion to dismiss the appea in that case, delivered at the June term, 1867, and the authorities therein cited.

2. It is not averred in the complaint, in terms, that the note sued on was executed by the appellants. But the judgment entry shows that the parties appeared by their attorneys, and that the defendants below moved the court to quash the summons and complaint in the cause; and that after this motion was overruled, a judgment by nil dicit, was rendered against the defendants.

The effect of the appearance and judgment is, to preclude the appellants from objecting to the regularity of the previous proceedings. Such has long been the established doctrine of this court. — (Clemens v. Johnson, 3 Stew. & Por. 269; see, also, Smith’s Adm’r v. Norwood, 9 Por. 287; Dunn v. Tillotson, 9 Port. 272; Andrews & Brothers v. McCay, 8 Ala. 920.)

3. It has been too often decided by this court to be now considered an open question, that though all the parties declared against in an action at law, have not been served with the initiatory process of the cause, yet if the judgment entry recites that “ the parties came by their attorneys,” an appearance is shown which dispenses with the regular service — the only object of which is to bring the parties into court. — (Gilbert v. Lane, 3 Port. 267; Lacey et al v. Beck, 5 Port. 167; Hobson v. Emanuel, 8 Port. 442.)

Judgment affirmed.