Heyman v. McBurney , 66 Ala. 511 ( 1880 )

SOMERYILLE, J.

This suit was commenced before a justice of the peace, and was removed by appeal to the Circuit Court. The record shows that the appellants, who were defendants in the court below, appeared by attorney on the trial of the cause, and failing to plead, or make defense, a judgment nil dicit was rendered against them, and damages assessed by a jury. No declaration or complaint was filed, or statement of the cause of action, so far as disclosed by the record. It is assigned for error, that this judgment was rendered without the previous filing of a statement of the cause of action.

Had there been no appearance of the parties, and a judgment of default merely had been rendered, this would constitute error, for which judgment would be reversed in this court, and the cause remanded.—Arundale v. Moore, 42 Ala. 482; Steelman v. Owen, 8 Porter, 562. But this is not the practice, where the record discloses the appearance of the parties defendant, by attorney, or in person, and there is a submission of the cause to a jury, without objection, and a verdict is rendered thereon. If a defendant, while so appearing, holds his peace, and says nothing in bar or preclusion of the plaintiff’s recovery, it is too late for him to raise the objection, after appeal, in this court. It must be presumed that a complaint has been waived by consent of parties, or else that it was lost from the papers ; in those cases, at least, where the record shows that pleas were filed, and issue joined between the parties. The rendition of the judgment, under this state of facts, was not a reversible error.—Bancroft v. Stanton, 7 Ala. 351; Wheeler v. Bullard, 6 Porter, 352.

The appellants Heyman and Lanier can not be permitted to object that their co-defendants, Meadors and Tucker, were discharged by the court below, without the intervention of a jury, on a plea filed by them in bar of the plaintiff’s demand. The statute authorizes such an issue to be tried by the court, without a jury, by consent of parties in writing, to be filed with the clerk of the court. — Code (1876), § 3029. It may be questioned, whether Meadors or Tucker could raise the objection here, for the first time, that the record fails to show a written agreement, as its existence might be presumed, in order to sustain the' exercise of jurisdiction by the primary court.—Thompson v. Lea, 28 Ala. 453. Certainly, if neither they nor the plaintiff object, no one else can do so for them. Parties can not assign errors on rulings not prejudicial to them, although they may affect other parties to the suit, and even constitute a ground of reversal as to them.—Walker v. Jones, 23 Ala. 448; 1 Brick. Dig. p. 102, § 284.

"We see no error in the record, and the judgment of the Circuit Court is affirmed.