Ward v. Manly , 113 Ala. 631 ( 1896 )

HARALSON, J.

The purpose of a summons is to inform the defendant of the action against him, to prevent his being taken by surprise, or being proceeded against without opportunity of being heard. A defendant may go into open court and confess judgment in favor of the plaintiff therein, or he may give a power of attorney to another to do so for him ; or upon a proper complaint, stating a legal cause of action, he may accept service and authorize the case to be docketed against him in court and stand for trial, as though regularly brought, and in neither of these instances is there any necessity for the ordinary summons, to commence the action. It is manifest, therefore, that whatever irregularities there may be in the summons itself, where one has issued, or in the manner of its service, these may be waived by the appearance or plea of the defendant, or by bis acknowledgment of service. “An acknowledgment of service, and a waiver of notice and copy [always implied in tbe acceptance of service] is a waiver of all defects in tbe summons.”-Ayres v. Hill, 82 Ala. 401; Woodward v. Clegge, 8 Ala. 317; Earbee v. Ware, 9 Port. 291; 22 Am. & Encyc. of Law, 169.

The court erred in the judgment rendered. Tbe defendant, by bis acceptance of service, agreement for docketing the cause and plea in bar of the action, waived his right to make the objection he did, to the alleged defect in the summons. There is no pretense that the plaintiff practiced any fraud on the defendant in taking an acceptance of service. It appears he acted for the accomodation of defendant in doing so. The summons itself, under the facts appearing, was of no consequence in the proceeding, and the defendant should not have been allowed to question the fact that the suit was commenced at the date of his acceptance of service of the complaint.

We do not impute a fraudulent intent to.the defendant, in the course he has pursued in the case ; but to allow such a defense, as is here interposed, to prevail, would open a door to fraud too tempting to dishonest litigants for courts of justice to sanction.

The judgment of the lower court is reversed', and the cause having been tried by the court, a jury having been waived, a judgment will be here rendered against the defendant for the debt sued on and interest.

Reversed and rendered.