Moore v. Watts & Sons

SOMERVILLE, J. — 1. The objection urged in the first assignment of error is not well taken. If there had been a judgment by default taken by the plaintiffs, Watts & Sons, without setting out the Christian names of the partners anywhere in the complaint, or summons, the defect might have constituted an error for which a reversal would lie in this court. The case of Moore v. Burns & Go., 60 Ala. 269, cited by appellant’s counsel, was one of this kind. But where the defendant goes to trial on a plea to the merits without taking objection to the defect in the lower court, he waives it, and can not raise the point for the first time in this court.— Ortez v. Jewett, 23 Ala. 662. We need not decide whether mentioning the names of the individual partners in the summons would or would not be sufficient, when all mention of them is omitted in the complaint; nor whether the name in which the suit is instituted could be construed to import a corporate character, as in the case of Seymour & Sons v. The Thomas Harrow Company, decided at the present term. 2. There was certainly no error in the charge of the court instructing the jury, that, in ascertaining by their verdict the value of the services of counsel, for which the suit was brought, they had no right to go outside the evidence and act from their own knowledge, apart from the evidence before them. The oath of the jury is to well and truly try all issues •vthich may be submitted to them, and “ a true verdict render according to the evidence.” It is a fundamental maxim of our jurisprudence that the personal knowledge of jurors as to facts in issue can not be allowed to overturn or prevail against the legal testimony introduced on the trial. It has long been held in this State that a charge is erroneous which instructs a jury that they have a right to draw an inference which is opposed to all the testimony.'— Cary v. Hughes, 17 Ala. 388. 3. The charge requested by the defendant assumed as true certain facts which were controverted, and, for this reason, apart from other sufficient objections to it, was properly refused. — Humes v. Washington, 74 Ala. 64. Affirmed.