Ethridge v. Fuller
Supreme Court of Alabama
1". When the record discloses that a cause has been in court for three years, and has once been continued by consent, the judgment will not be reversed, although no service or writ appears in the transcript, and although the appearance of the defendant’s attornies is on their motion stricken out. The proper course, if there was no service or waiver, was for the defendant to explain the condition of the record, by affidavit, and ask its correction.
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1". When the record discloses that a cause has been in court for three years, and has once been continued by consent, the judgment will not be reversed, although no service or writ appears in the transcript, and although the appearance of the defendant’s attornies is on their motion stricken out. The proper course, if there was no service or waiver, was for the defendant to explain the condition of the record, by affidavit, and ask its correction. Writ of Error to the County Court of Mobile County. 'In the transcript sent to this court, there is no writ. The declaration is entitled of…
1Opinion of the CourtGoldth Waite, J.
This belongs to that class of cases in which we have so often refused to reverse judgments on account of the supposed omission of service of the writ. Here, for three years, the cause remains in court, and the record shows it to have been once continued by consent, and also, that the parties came by their attornies at the term when the trial was had. If in truth •there was no service of process, nothing was easier than for the defendant to have explained the condition of the record by affidavit, and we are not called on to presume the court below would have omitted to correct the entries,…
2Cited by3 opinions
- McElhaney v. GillelandSupreme Court of Alabama · 1857
- Stubbs v. LeavittSupreme Court of Alabama · 1857
- Henricks v. HenricksAppellate Division of the Supreme Court of the State of New York · 1949