Shouse v. Lawrence

BRICKELL, J. If, as insisted by tbe appellants, there was a discontinuance of the motion against them, by the appellee’s failure to invoke any action upon it at the term of the court at which he had given notice it would be made, the discontinuance was waived by their subsequent appearance, without objection, at the succeeding term of the court, and consenting to a continuance. Evans v. State Bank, 13 Ala. 787. The record discloses that the circuit court had jurisdiction of the motion. - The appellants appeared, and waived a trial by jury, consenting that the judge should hear and render judgment on the evidence. All the objections now made to the judgment could have been cured in the circuit court by an amendment, if there presented. Of the right of amendment, the appellants deprived the appellee, by failing to interpose the objections now made. It is too late for them to urge these objections in this court. Such would unquestionably be true, if the suit had been in the ordinary mode, instead of summary by motion. In statutory proceedings, the rule is the same, when the record discloses jurisdiction, and the defendants appear and join issue with the plaintiff. Then, the proceeding is treated as if it had been commenced in the ordinary mode. Smith v. Br. Bank Mobile, 5 Ala. 26; Rutherford v. Smith, 27 Ala. 417. No formal issue appears from the record to have been formed; but, on error, when the record shows that the parties appeared, and submitted the facts to a jury, the presumption is, that it was waived, or that there was a proper issue formed. The same presumption attaches when the.court is the trier of the facts. Smith v. Br. Bank Mobile, supra. There is no error in the record, and the judgment is affirmed.