Elyton Land Co. v. Morgan

• Decision Date: 30 January 1890
• Citation: Elyton Land Co. v. Morgan, 88 Ala. 434, 7 So. 249 (Ala. 1890)
• Parties: ELYTON LAND CO. v. MORGAN ET AL.
• Court: Alabama Supreme Court

7 So. 249

88 Ala. 434

ELYTON LAND CO. v. MORGAN ET AL.

Supreme Court of Alabama

January 30, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by W. J. Morgan & Co. against the Elyton Land Company. Judgment was rendered for plaintiffs, and defendant appealed.

Lane & White, for appellant.

Weatherly & Putnam, for appellees.

STONE C.J.

There is no merit in the present appeal. The objection sought to be raised by demurrer cannot be presented in that way. Demurrer raises the question of the sufficiency of the complaint, and the present complaint is sufficient. If the affidavit to the account was insufficient, that could be raised when it was offered in evidence. Code 1886, § 2773. The defect, if any went to the evidence, not to the pleadings. The demurrer was frivolous. But if the demurrer had been well taken, it could not avail the appellants. It was not enough that a sufficient issue was formed. Counsel should have been present to invoke the action of the court, and to represent his client. A demurrer found in the file, and neither called to the attention of the court, nor ruled on, must be regarded as abandoned; and parties permitting their suits to be tried in their absence, and without counsel, cannot complain if they are treated as in default. Lehman v. Hudmon, 85 Ala. 135, 4 South. Rep. 741.

The objection that the judgment was by default instead of nil dicit relates to...