Dew v. Cunningham
Supreme Court of Alabama
Appeal from the Circuit Court of Pickens. Tried before the Hon. Geo. D. Shortridge. This suit was commenced on the 12th September, 1854. The return of the sheriff was in these words : “ Executed the 23d September, 1854, by leaving a copy of this summons with each of the defendants.”
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Appeal from the Circuit Court of Pickens. Tried before the Hon. Geo. D. Shortridge. This suit was commenced on the 12th September, 1854. The return of the sheriff was in these words : “ Executed the 23d September, 1854, by leaving a copy of this summons with each of the defendants.” Judgment by default was rendered against the defendants, at the term to which the summons was returnable, on the 27th October, 1854; from which judgment they now appeal, and here assign- the following errors: “1. The record does not show that the. complaint was executed on the defendants, or a copy of it left with…
1Opinion of the CourtWalken, J.
Where there is no service of the process commencing a suit, it would be error in the circuit court to render judgment by default. If the service be merely irregular, the objection must be appropriately made in the court below, and can not be made for the first time in this court.— Moore v. Fiquett, 19 Ala. 237; Roberts v. Beeson, 4 Porter, 166; 3 Chitty’s General Practice, 517-518; Maverick v. Duffee, 1 Ala. 433.
In this case, the service of the summons does not affirmatively appear from the sheriff’s return to have been effected by a delivery of a copy of the complaint as well as the summons.…
2Cases cited2 opinions
- Maverick v. DuffeeSupreme Court of Alabama · 1840
- Moore v. FiquettSupreme Court of Alabama · 1851
3Cited by19 opinions
- Central of Georgia Railway Co. v. StateSupreme Court of Georgia · 1898
- Santee Mills v. QuerySupreme Court of South Carolina · 1922
- Bales v. StateSupreme Court of Alabama · 1879
- Ex Parte CokerSupreme Court of Alabama · 1991
- Gibson v. StateSupreme Court of Alabama · 1925
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