Coats v. M. J. Elkan & Co.

WALKER, P. J. -The motion of tbe appellee to dismiss tbe appeal because of an alleged insufficiency of tbe appeal bond must be overruled, -as before it was made be bad already joined in tbe appellant’s assignment of error. A joinder in error is an unequivocal act 189 implying a submission by tbe appellee to tbe jurisdiction of tbe appellate court, and amounts to a waiver of an appeal and of any of the steps required to effectuate it. — Thompson v. Lea, 28 Ala. 453; Myers v. Begars, 41 Ala. 385. Tbe recital of the judgment entry as to a “verified account filed Avith tbe clerk, verified by tbe affidavit of a competent person as required by law for tbe sum of $319.46.” fairly imports a finding by tbe court of tbe existence of tbe fact that there was on file in tbe court an itemized statement of tbe account sued on, verified by tbe affidavit of a competent witness, made before and certified by an officer having authority under tbe laws of this state to take and certify affidavits, which, under tbe provision of section 3971 of tbe Code, dispensed with tbe neecssity of executing a writ of inquiry to ascertain tbe amount of tbe judgment taken by default. In this respect tbe recital was materially different from tbe one in tbe case of Parsons Lumber co. v. West-Steagall G. & M. Co., 163 Ala. 594, 50 South. 1034, which was held to be insufficient to show the existence of authority in tbe court to render judgment by default without a writ of inquiry. We are of opinion that tbe judgment in tbe instant case sufficiently shows tbe existence of tbe fact which, under tbe statute, entitled the court to enter judgment by default, without tbe intervention of tbe jury, and that the judgment is not erroneous because of a non-compliance with tbe statute just referred to. Affirmed.