Sigler v. Woods

Isbell, J. It is obvious that these several assignments, except tbe third, resolve. themselves into the question, whether tbe silence of the record as to what disposition was made of the demurrer, and also its silence whether a plea was filed, save only, that the jury was sworn to try the issue joined, will justify this court in concluding that there was error in the court below; it appearing that the parties appeared and proceeded to trial, and it not appearing that any objection was made below, or any attempt to arrest the judgment, or to correct the error, if it in fact existed; or that it was in any way brought to the attention of the court. From some cause, inexplicable, the suit has been so long deferred, that we feel disinclined to disturb the judgment of the court below, nor do we see any good reason for so doing. If the demurrer had been called up, we see ho reason why it could have been sustained. But a demurrer found among the papers, after verdict and judgment, will be intended on error to be waived. Couch & Kinsman v. Barton, Morris, 354; Carlisle v. Davis, 7 Ala. 42. The silence of the transcript as to whether a plea was filed, stands on similar footing; and “it has often been decided by this court, that no error can be assumed from mere omission or defect in the transcript; that it must appear affirmatively of record.” Mackemer v. Benner, 1 G. Greene, 157. But should we infer that the demurrer was in fact undis-posed of, and no other plea in, we are by no means prepared to conclude that a party might, as the law stood when this cause was tried below, contest his cause before a jury, and take his chance of success there; and then, without any effort to arrest the judgment, or even calling the error to the [179] ■attention of tbe court below, still be entitled to aid from this court. As it now stands, no sucb question could arise. Woods & Hobert v. Morgan & Morgan, Morris, 180; 6 Yerger, 491; Breese, 14. As to tbe blanks in tbe declaration, there -are none material. Judgment affirmed.