25 Ala. 534 | Ala. | 1854
We have frequently held, that a general appearance by the defendant cures the want of service of process, and is a waiver of any defect or irregularity in the service. — Gilbert v. Lane, 3 Porter 267; Naylor v. Phillips, 3 Stew. 210; Wheeler v. Bullard, 6 Porter 352; Hobson v. Emanuel, 8 ib. 442; Moore v. Phillips, ib. 567.— If the defendants had only appeared for the purpose of moving to set aside the service of the writ, this would not be a general appearance ; but if they took any action in relation to the case, disconnected with the motion, and which recognized the case as in court, this would be such an appearance as would waive the defect in the process or service, and it would be immaterial whether the motion to set aside the service of the writ was pending at the time of the appearance. The record shows that, after the return term, the defendants appeared, and at their motion the case was taken froip the appearance docket, and placed on the trial docket, and that subsequently to this they appeared, and the case was continued at their instance no less than three times ; that all of this was before the motion to dismiss was acted on. Upon the principle we have laid down, the appearance by the defendants, and the making of the motions, was a waiver of any previous irregularity in the process.
Judgment reversed, and cause remanded.