Branch Bank at Mobile v. Rutledge & Watts

CHILTON, J. The case referred to by the counsel for the plaintiff in error, and several other decisions of this court, are conclusive to show that a bill to enjoin a judgment should be filed in a court of chancery where the judgment was obtained, and cannot be exhibited elsewhere, unless the party interested in the judgment will allow the litigation to be had in another county, and if such bill be filed in an improper .county, it will be dismissed on defendants' motion. In this case, however, the defendant to the bill made no motion to dismiss, and permitted the court to proceed without any objection. The bank must be considered as having waived the objection which it now for the first time makes. The chancery court had jurisdiction of the subject matter of the complaint, but merely exercised it in the wrong county. This was a matter which the court was not bound mero motu to notice, and which the defendant below could waive, and did waive by failing to raise the objection in that court. See Freeman v. McBroom, 11 Ala. R. 943. Let the decree be affirmed.