Stone v. Harris

Decided December 15, 1821

Supreme Court of Alabama · decided 1821-12-15

THE writ of capias was tested in the name of Walter ^osi’ Clerk of the Superior Court of Montgomery County,but was signed “AlwinA. MiWorter, D. S. S. C. M. C.” The Record shewed no appearance, of defendant in the Court below. Judgment was rendered against him by default. In this Court he assigned as Error, that it does not appear that the writ was signed by the clerk of the Court, from which it purports to have issued.

Decided 1821-12-15

By the Court.

¶1The Motion to amend cannot prevail. As to the Error assigned — The Statute requires that all writs shall “ be signed by the Clerk of the Court from- which “ they may be issued.” (Acts of 1818. Laws Alabama, p. 473.) The teste of the writ is mere matter of form; it is the signature of the Clerk which gives it validity. If the defendant makes a voluntary appearance and pleads to the merits, a defect in the process will after judgment be considered as waived. In this case there was no plea or appearance by defendant.

¶2Let the judgment be reversed.