14 Ala. 293 | Ala. | 1848
We have repeatedly held, that the summary remedy at the suit of a bank lies only, against the debtor personally, and therefore his personal representatives are not thus suable. See Murphy’s adm’rs v. The Br. Bank
The record recites that upon the death of David Curry being suggested to the court, Wm. King, his administrator, appeared in proper person and made himself a party by consent, and waived all irregularity arising therefrom; whereupon the parties came by their attorneys, that the issue joined was submitted to a jury for trial, who returned a verdict in favor of the plaintiff, on which a judgment was rendered. This we think is quite sufficient to cure all irregularity in the form of the proceeding, and shows that the administrator consented that the suggestion should progress to a final determination of the matter in controversy, as if au action had been duly instituted according to the ordinary legal forms.
True,, it is a general rule that consent cannot give jurisdiction, but this rule does not apply where the court has jurisdiction of the parties and subject matter. In such case, it is competent for the parties to waive any objection of form, or substance to the manner in which the defendant is brought into court, or the cause of action or defence is developed. This we see has been done. There is consequently no error in the record, and the judgment is affirmed.