Humphreys' Adm'r v. Thompson

GOLDTHWAITE, J. We think this admission or consent, that the indorsement of the cause of action on the writ, should stand in lieu of a declaration, is not of the same nature as an acceptance of service of the writ, which, according to many previous decisions, is necessary to be proved to the court, and to set out on the record. [O’Neal v. Garrett, 3 Ala. Rep. 276; Rowan v. Wallace, 7 Porter, 171; Norwood v. Riddle, 9 ib. 425.] The reason for these decisions is, that the party can only be brought before the court by actual service of process, or by some express waiver of it. When once in court, however, in either way, he is there for any purpose incidental to the cause; and [651] when an act appears of record as performed by him, the same credence will be given to it, as to any other part of the record. It is the customary course for this court to presume a waiver of the strict rules relating to pleading, when there is a statement that the pleas were taken in short by consent; the fact here shewn, does not differ in principle from what is stated as the usual course of practice. If the written consent, introduced to the record by what purports to be the act of the party, was never made, the proper course is, to apply to the court below to expurgate it, and thus cause the record to conform to the truth. As the record stands, there is no error. Judgment affirmed.