Crawford v. Creagh , 1 Ala. 592 ( 1840 )

GOLDTHWAITE, J

— 1. The cases of Johnson v. Perry, 4 S. & P. 45; Wharton v. Franks, 9 Porter, 233; and Maverick v.Duffee, supra, are decisions of (his court, on the same principle that is involved in the first assignment of error, and would be conclusive against it, even if the motion, which was entered on the rule book of the circuit court, had been made at that time to the court and then overruled.

2. The second assignment has been argued with grpat force, and the peculiar organization of the county court, has been very fully investigated, to show that it does not possess the power to summon a jury of by-standers. If this conclusion was arrived at, the cause of the plaintiff in error would not be advanced, because we must consider the irregularity, if it is one, as waived, by not having been excepted to in the county court. The party was present when the jury was directed to be summoned, and made no challenge, either to the array or to the polls, for this cause. The verdict, if one had been rendered for the defendant, could not have been set aside for this reason, and would have been an effectual discharge of the cause of action, and we know of no reason why it should not be equally conclusive against him.

It is perfectly clear that the county court had jurisdiction of this action, and if irVegularities or errors have intervened in the progress of the trial, and have not been excepted to, the uniform course of practice, is, to consider them as waived. A contrary course would enable a party to fold his hands and rest perfectly secure, if the slightest error intervened; when, if he had objected to the erroneous course about to be pursued, it could have been corrected or obviated by the adverse parly.

There is, in our opinion, no error shown in the record, and the judgment is affirmed.