Perry v. Hurt, Corbin & Atkins

BRICKELL, C. J. There is no error in this record. On an appeal to the circuit court from the judgment of a justice of the peace, the cause must be tried without regard to any defect in the process, or other proceedings before the justice. — R. C. § 2772. If the suit was commenced by attachment, defects in the affidavit or the writ, are, on appeal, cured by the statute.—Clough v. Johnson, 9 Ala. 425. The only defenses the circuit court can regard, are such as reach the merits of the case.—McCrary v. Smith, 7 Ala. 157; Slaton v. Apperson, 15 Ala. 721; Thompson v. Pierce, 2 Stew. 427. If the plea in abatement could ever have been available, it came too late, at the fourth term, after the appeal was returned. It should have been filed at the return term of the appeal.— Vaughn v. Robinson, 22 Ala. 519. The judgment rendered against the sureties on the appeal bond, was properly rendered against them in the names they used in its execution. It is not for them to say, or for the appellant to say, now, that they did not use names by which they are suable. The judgment is affirmed.