Dew v. Cunningham

WALKEN, J. Where there is no service of the process commencing a suit, it would be error in the circuit court to render judgment by default. If the service be merely irregular, the objection must be appropriately made in the court below, and can not be made for the first time in this court.— Moore v. Fiquett, 19 Ala. 237; Roberts v. Beeson, 4 Porter, 166; 3 Chitty’s General Practice, 517-518; Maverick v. Duffee, 1 Ala. 433. In this case, the service of the summons does not affirmatively appear from the sheriff’s return to have been effected by a delivery of a copy of the complaint as well as the summons. Conceding that we must intend that the sheriff omitted to serve a copy of the complaint along with the summons, as the service of the summons itself was sufficient to bring the parties into court, we will regard that omission as a mere irregularity not fatal on error. The judgment by default in this case was rendered at the return term of the process commencing the suit. This could only be authorized by the Code. It is contended by the learned counsel for the appellant, that the Code is unconstitutional, and that therefore the judgment by default was improperly rendered. Three years have elapsed since the 'Code went into operation; and every judicial tribunal in the State, including this court, has been acting under it, and carrying out' its provisions. This court has repeatedly rendered judgments, in matters of the highest importance, which have-no sanction [471] whatever in the law, if the Code is unconstitutional. Some of the sections of the Code have been expressly held to be constitutional, which could not be the case, if the entire system were unconstitutional. These facts constitute a strong judicial authority against the position of the appellant’s counsel, although it is not expressed in any direct decision upon the point. It is argued, that the Code is not the law in this State, because, at the time of its adoption, it was not read upon three several days in each house of the general assembly. The constitutional provision is, that “ no bill shall have the force of law, until on three several days it be read in each house, and free discussion had thereon.” The requirement of the constitution is, that every bill shall be read on three several days in both houses of,the general assembly. We do not understand this to mean that every thing which is to become a law by the adoption of the bill must be read on three several days. Such a construction is not warranted by the language of the constitution. Our legislative annals afford many instances of the adoption by one comprehensive enactment of large masses of law, which were never read on three several days in both branches of the legislature. To this class of legislation belongs the statute, which provides for the punishment as at common law of misdemeanors for which no punishment is prescribed in our statutes. An act of this kind was adopted a great many years ago in this State, and has been continued in all subsequent legislation on the subject of the criminal law. It can not be supposed that the entire common law on the subject of misdemeanors, outside of the scope of our statutes prescribing , punishment for offences, was ever read in the legislature at all. Nevertheless, this court has repeatedly recognized as binding in this State the common law which provides for the punishment of misdemeanors, for which no punishment was prescribed in our statutes. Aikin’s Digest was by one statute “ established” as the law; and all laws of a general and public nature, passed previous to a certain time, with the exception of laws relating to county boundaries, were repealed by the same statute. The force of law has been conceded by the people and every department of the government of this State to [472] Aikin’s Digest. The effect given to Aikin’s Digest by the courts was not simply that of affording' evidence of what the law was, but of law itself. It has been held by this court to have effected the repeal of pre-existing law. We do not think it could have been contemplated, in the adoption of the constitution, that every thing which becomes a law, as the result of the adoption of a bill, should be read on three several days in the legislature. It would exclude the power of making comprehensive enactments, which legislative bodies have always exercised, to so hold. The first section of the third article of the constitution is as follows : “ The legislative power of this State shall be vested in two distinct branches: the one to be styled the senate, the other the house of representatives, and both together the general assembly of the State of Alabama”; and the style of their laws shall be, “ Be it enacted by the senate and house of representatives of the State of Alabama, in general assembly convened.” It is contended, that the Code is not. the law, because it has not the style prescribed. Conceding, for the sake of the argument, that the adoption of the style is necessai’y to the validity of an act of the legislature, it will not aid the appellants. The bill adopting the Code is preceded by the words designating the style of the laws, and that is sufficient. It would be impracticable to make the style precede every law called into force by act of the legislature. The style which heads the bill adopting the Code, may well be regarded as the style of the laws embraced in it. The judgment of the court below is affirmed.