Swope v. Sherman

PELHAM, J. Suit was originally commenced by the appellee in attachment proceedings against the appellant. The affidavit alleges that one Swope was justly indebted to affiant (Sherman) after allowing all offsets and discounts in the sum of $300. The complaint claimed the sum of $300 arid alleged that the defendant feloni-ously took and carried away $500, the personal property of the plaintiff ; that through the assistance of officers of the law and by means of a search warrant the plaintiff secured $242 of the said amount; and that the plaintiff was forced to expend certain amounts for attorney’s fees, .courts costs, etc., in recovering this $242. Judgment by default was rendered by the court against the defendant for $298 after hearing the evidence introduced by the plaintiff, at a regular nonjury term of the circuit court of Colbert county under the provisions of the practice act relating to the practice and procedure in that court. — Acts 1894-95, p. 763. The judgment of the court thus rendered stands as the verdict of a jury, and must be accorded the same weight and effect. — Winter-Loeb Grocery Co. v. Mutual Warehouse Co., 4 Ala. App. 431, 58 South. 807, and authorities there cited. The complaint claims damages in the sum of $300; the judgment is for $298, there is no bill of exceptions, and nothing to show upon what evidence the court based its findings. The only question presented by the record is whether the complaint states a substantial cause of action that will support the judgment of the court. — Code, § 4143. The record shows that personal service was had upon the defendant, and that he suffered judgment to be rendered against him by default. It may be that the complaint contains allegations claiming items of damage that were not recoverable arid was subject to motion to [213] exclude these items or other proper and seasonable objections; but, no objection having been made to the defects in the court below, the complaint is not assailable after judgment and on appeal for such defects when it states a substantial cause of action. — Kyle v. Caravello, 103 Ala. 150, 15 South. 527; Home Protection of N. A. v. Caldwell Bros., 85 Ala. 607, 5 South. 338. The complaint clearly states a cause of action against the defendant in that it claims “$300 as damages for that on, to-wit, the 30th day of December, 1910, the defendant feloniously took and carried aivay $500, the personal property of the plaintiff, and failed and refused to return the said amount or any part thereof,” etc. The judgment does not, as contended by appellant, exceed the amount claimed, and, even if it did, the objection, to be available, must have been made in the court below. — Smith v. Dick, 95 Ala. 311, 10 South. 845; Govt. St. R. R. Co. v. Hanlon, 53 Ala. 70; Drake v. Johnston, 50 Ala. 1. The judgment of the circuit court will be affirmed. Affirmed.