Moore v. Briggs

14 Ala. 700 | Ala. | 1848

CHILTON, J.

The defendant appeared and plead to the action in the court below, he consequently waived all defects in the service of the writ. Chapman v. Arrington, 3 Stew. Rep. 480; Dunn v. Tillotson, 9 Porter’s Rep. 272; Hobbs et al v. Emanuel, 8 Ib. 442; Moore v. Phillips, 8 Ib. 567.

A declaration appears on file, and is found in the record, together with a writ to which it conforms. The writ however does not appear to have been signed by the clerk. Upon the back of the declaration is the following indorsement: “ It is agreed between us, that the within writ and declaration be the true one to be used. (Signed.) Porter — S. D. J. Moore.” Porter being the counsel for the plaintiff below. It is insisted in this court, by the plaintiff in error, that there is no proof that the agreement indorsed on the declaration was made by him. Had the judgment been rendered by default, then according to the numerous decisions of this court, we could not look to the agreement, unless we were certified by the record that the agreement was proved in the court below. 3 Ala. R. 276; 7 Porter’s Rep. 171; Norwood v. Riddle, 9 Ib. 425. But as we have said, the plaintiff in error appeared in the court below, pleaded to the declaration, and was actually allowed by the jury a set off, which he established. No objection was taken to the writ, nor for want of proof of the agreement, so that such proof might have been supplied. He cannot raise the objection in this court for the first ‘time. The case is in principle almost parallel with Humphrey’s adm’r v. Thompson, 6 Ala. R. 649. In that case, acceptance of service was proved, and judgment by default was rendered. There was no declaration, but an indorsement on the writ, purporting to have, been signed by the defendant, which was not proved, as follows : “ The defendant waives the necessity of a declaration in this case, and accepts this indorsement in lieu thereof.” It was held this was not of the nature of the written acceptance of service. That the court finding it in the record, would regard it as a part of it, and if the writing was in fact not the act of the party, he should move the court below to expurgate it so as to make the record conform to the truth.

There being a good declaration in this record, thus indorsed and pleaded to, we will not look to the writ to reverse the judgment, nor intend against the correctness of the agreement, for the purpose of reversing.

Let the judgment be affirmed.