5 Ala. 234 | Ala. | 1843
1. It has several times been held by this court, that a defendant may voluntarily come before a court to answer a suit by the acknowledgment of the service of the process, and that such acknowledgment when made, is equivalent to service by the proper officer. In such cases, however, the entry of the acknowledgment upon the process, is not by itself, sufficient to sustain the jurisdiction, but the factum of the ac-knowlegment must be proved and shown upon the record, to have been so. [Earbee v. Ware, 9 Porter 291; Welch v. Walker, 4 Porter, 120.]
As a defendant may come before a court in this manner, and thus give it jurisdiction to render a judgment against him; there is no good reason why the factum of the acknowledgment should not be subsequently shown, if it is omitted to be entered upon the record when the judgment is rendered. It is the fact that an ac
2. It is urged however, that if the judgment is affirmed, it should it be at the cost of the defendants in error, and without injury to the plaintiff’s sureties in the error bond, as the record was defective when the writ of error was sued out. On this point there seems to bo some conflict of decision, as it was refused to affirm with costs and damages, in Brown v. Tarver, [Minor 370] where an amendment was made after error brought. But in Hefflin v. McMinn, [2 Stewart, 492] costs and damages were given in a case not to be distinguished from this. The rule in the English courts, is not to give costs, if the plaintiff will proceed no further with his writ' of error. But even then, if the amendment is made by virtue of the statute of amendment, costs are always allowed. [Tidd’s Frac. 771.] In neither of the cases decided by this court on this point, nor in the subsequent case of Evans v. St. John, [9 Porter, 186,] where it is adverted to, is the consequence of superseding the judgment by writ of error bond, considered, and in our opinion they are of such importance as to control the practice. By superseding the judgment, the lien of the plaintiff is completely destroyed, and if he has no remedy on the bond against the sureties, irreparable loss may arise.
Such consequences, ought not to be allowed, and in our opinion the judgment must be affirmed, with costs and damages.
It is conceded that at the time the writ of error was sued out in this case, there was an error in the record,