—The chancellor was wholly without jurisdiction to reinstate this cause at a term subsequent to that at which it had been dismissed and finally disposed of, no motion having been made for reinstating at the term at which it was dismissed, and continued to such subsequent term. The defendant might, therefore, have treated the whole proceeding as coram, non judice, after the cause was again put upon the docket, or (which would have been, perhaps, the more appropriate course) have applied to this court for the writ of prohibition, to arrest the unauthorized action of the chancellor in proceeding with a cause in the absence of jurisdiction.— He did not, however, do this ; but when the cause was ordered to be reinstated, he appealed to this court, and, without taking any further steps, went on to engage in the defence, by crossing interrogatories, entering into consent, objecting to the proof as illegal, &a. Under these circumstances, the defendant must be considered as having waived his objection to reinstating the case. The case of Hair v. Moody, 9 Ala. 399, is an express authority to this point, and we are not disposed to depart from the principle of that decision.
. We might proceed to consider this case upon its merits ; but we deem it the safer practice, when the court below has not determined upon the merits, to remand the cause, that it may do so, since, in many cases, great injustice may be done to suitors by depriving them of the right of raising questions, or of making motions, which might materially affect the merits, and which can alone be made jn the primary court. *586Tbe statute is not imperative as to tlie rendition of a decree upon the merits in such cases (Code, § 3084); and such practice certainly conforms to the spirit of the constitution, which declares that this court “shall have appellate jurisdiction only,” except in cases otherwise directed by it.
Decree reversed, and cause remanded.
Rice, J., having been of counsel for the appellant before his election to the bench, did not sit in this case.