Lampley v. Beavers
Supreme Court of Alabama
Appeal from the Circuit Court of St. Clair. Tried before the Hon. ANDREW B. Moore. Motion to set aside the service of process, on the ground that the defendants, at the time the writ was served on them, were in attendance on court as witnesses under subpoena.— The writ was returnable to the Spring term, 1846, and was returned executed on the defendants before the return day.
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Appeal from the Circuit Court of St. Clair. Tried before the Hon. ANDREW B. Moore. Motion to set aside the service of process, on the ground that the defendants, at the time the writ was served on them, were in attendance on court as witnesses under subpoena.— The writ was returnable to the Spring term, 1846, and was returned executed on the defendants before the return day. At the return term, the record recites, the parties appeared by attorney, and the attorney of Beavers moved to quash or set aside the service of the writ; which motion was continued. At the Fall term, 1846, a general…
1Opinion of the Court
GOLDTHWAITE, J. —
We have frequently held, that a general appearance by the defendant cures the want of service of process, and is a waiver of any defect or irregularity in the service. — Gilbert v. Lane, 3 Porter 267; Naylor v. Phillips, 3 Stew. 210; Wheeler v. Bullard, 6 Porter 352; Hobson v. Emanuel, 8 ib. 442; Moore v. Phillips, ib. 567.— If the defendants had only appeared for the purpose of moving to set aside the service of the writ, this would not be a general appearance ; but if they took any action in relation to the case, disconnected with the motion, and which recognized the case…
2Cases cited3 opinions
- Wheeler v. BullardSupreme Court of Alabama · 1838
- Gilbert v. LaneSupreme Court of Alabama · 1836
- Naylor v. PhillipsSupreme Court of Alabama · 1830
3Cited by20 opinions
- Ex Parte CullinanSupreme Court of Alabama · 1931
- Gager v. Doe, ex dem. GordonSupreme Court of Alabama · 1856
- Grigg v. GilmerSupreme Court of Alabama · 1875
- Noles v. MarableSupreme Court of Alabama · 1874
- Rosenberg v. Claflin Co.Supreme Court of Alabama · 1891
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