Teat v. Cocke

JUDGE, J. If the court below had not the power, under the circumstances, to allow the amendment to make Teat a party defendant, by the issue of a branch summons— [337] a question not necessary to be Here decided — still, a judgment by nil dicit having been suffered without objection to the amendment, the action of the court in allowing it, cannot be reviewed on error. — Stewart v. Goode & Ulrick, 29 Ala. 476. Such a judgment is an admission that the defendant has been properly brought into court. — Emanuel v. Ketchum, 21 Ala. 257. Under the act of February 20th, 1866, to regulate judicial proceedings, the first term of the court after the commencement of the action, in suits like the present, is the return term, the second an appearance and pleading term, and the third or next term thereafter, the trial term. The action was commenced as against Teat, on the 12th of October, 1866, and the spring term 1867, was the return term, as to him, at which term the court rendered judgment. This action of the court was erroneous. By making Teat a party, the appellee imposed upon himself, by his own election, the necessity of delaying his cause until the regular trial term, as to Teat, should arrive. The analagous case of Griffin et al. v. Wilson, 19 Ala. 27, is decisive of this question. See, also, Dupree & Hampton v. Smith, 3 Ala. 736. The error of the court above pointed out, is no mere formal defect, which might have been remedied by an amendment in the court below. — Shep. Dig. 664, § 20. It is a radical error which was not cured or waived by the appearance of Teat, nor by the judgment by nil dicit Emanuel v. Ketchum, supra. Judgment reversed and cause remanded.