Ethridge v. Fuller , 6 Ala. 58 ( 1844 )

GOLDTH 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, which in effect, conclude the defendant if they are inconsistent with the facts. Nor, is it a legitimate presumption, when the courthas, immediately after its action in striking out the appearance of the gentlemen named, proceeded to try the case, that it also intended to declare the defendant was not in court. In addition to all that the record discloses previous to the judgment, we perceive that a motion was made by the defendant’s attornies afterwards, to correct the judgment entry, so as to correspond with the facts which occurred at the trial, which facts are said, in the entry of the motion, to be set out in an affidavit, Lkewise omitted in the transcript. It is proper to remark, that the entry of the judgment is as much the matter of exception, as any th.ng which can occur in the proceedings of a cause, and if it is entered in defiance of the truth, means exist by which the action of the court can be controlled, and the injury redressed.

The ábsence of the writ and its service, from the transcript, are controlled by the express terms of the record, and therefore, there is no cause for reversal.

Judgment affirmed.