Birmingham Flooring Mills v. Wilder
| Decision Date | 11 January 1889 |
| Citation | 5 So. 307,86 Ala. 593 |
| Parties | BIRMINGHAM FLOORING MILLS v. WILDER ET AL., (TWO CASES. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Jefferson county; LEROY F. BOX, Judge.
Actions of assumpsit by V. V. Wilder & Co. against the Birmingham Flooring Mills. Defendant appeals.
R. H. Pearson and Martin & McEachin, for appellant.
S.D. Weakley, for appellees.
A general appearance by a defendant is a waiver of any defect in the service of the summons and complaint, and may even dispense with the necessity of the service of all process, the purpose of which is only to bring him into court. Goldsmith v. Stetson, 39 Ala. 183; McCaskey v. Pollock, 82 Ala. 174, 2 South. Rep. 674; 2 Brick. Dig. p. 366, §§ 81-87. Conceding that the service of the summons and complaint, as made by the sheriff in this case, was defective because left with the wrong person,-one who was no longer an officer or agent of the defendant corporation,-the record shows a general appearance by the defendant, and participation in the trial of the cause on its merits, and this cured the alleged defect in the service of the process.
The judgment entry shows no ruling by the court below on the demurrer. It is not shown that the action of the circuit court was invoked to adjudge its legal sufficiency, and pleas to the merits of the action are shown to have been filed. The demurrer must therefore be presumed to have been waived. Pitts v. District of Opelika, 79 Ala. 527
The two actions here tried together were between the same parties, and pending in the same court simultaneously, and were each based on matters ex contractu, which could have properly been joined. They were therefore properly consolidated by order of court, especially as the record shows this was done by consent of the parties litigant. Code 1886, § 2742; Berry v. Ferguson, 58 Ala. 314.
We discover no error in the record, and the judgment is affirmed.
To continue reading
Request your trial
-
Ex parte Ashton
... ... Frank ... L. Parsons and John W. Altman, both of Birmingham, for ... petitioner ... Lange, ... Simpson & Brantley, of ... for the payment of money. The case of Birmingham Flooring ... Mills v. Wilder & Co., 85 Ala. 593, 5 So. 307, held two ... or more ... ...
-
Butler v. Walton
...with the necessity of the service of all process, the purpose of which is only to bring him into court.' Birmingham [Flooring] Mills v. Wilder & Co., 85 Ala. 593, 5 So. 307. 'The plaintiff waived his right of service of copy of the pleas of set-off and waived the time allowed him to plead a......
-
Bley v. Travelers Ins. Co.
...suits upon which one verdict was rendered, and on appeal the Court said: "The judgment is affirmed". Likewise in Birmingham Flooring Mills v. Wilder, 85 Ala. 593, 5 So. 307, 308, where two actions ex contractu were consolidated, the Court said: "We discover no error in the record, and the j......
-
Stull v. Daniel Mach. Co.
... ... 584] ... Weatherly, ... Birch & Hickman, of Birmingham, for appellant ... Harsh, ... Harsh & Harsh, of Birmingham, ... Birmingham, etc., Mills v. Wilder & Co., 85 Ala ... 593, 5 So. 307 ... The ... ...