This suit was commenced before a justice of the peace, to'recover damages for the failure to deliver property .shipped at different times and under' different, contracts to plaintiff, doing business under, the. . fir;m name of W. H. Jones & Co.
.There were two counts in the complaint, on two distinct causes pf action, one for a failure to deliver a car ... loaff.of potatoes,, ^received by the deféndant as.' a common carrier-, on, to-wit, the 12th of January^ 1892, to be’ . delivered to the plaintiff, ” and’ the other, for a failure .to .- *215deliver another car load of potatoes, “received by it as a common carrier, on or .about the first day - of February, 1892, to be delivered to the plaintiff.”. Each count laid the damages at $50, and was in form as prescribed by-the-Code, page 293, form 15. A trial was had between the parties, and a judgment was rendered, on the 20th April, 1892, against the defendant for the sum of $100.
From this judgment, the defendant prosecuted an- ap.-. peal to the circuit court, in which court a judgment was also rendered against defendant for $100. -When the cause reached'the circuit court, the plaintiff filed what is styled in'the record,,” Complaint in the circuit court,”, which was intended, evidently, as an additional count on the same cause of action as that sued on in'-tlio .2d count of the original complaint in the- justice’s court. This additional count, however, it i-s contended, is in form ex delicto, which could not be joined with the original count on the same cause of action, which was ex contractu. But, whether it was subject to that criticism or not, it is unnecessary to decide even if such misjoinder existed, since there was no objection raised for its alleged misjoinder with the others.
On the trial of causes appealed from justices’ courts, where the sum exceeds $20, the rule is, that a declaration or statement of the cause of action must be filed in the appellate court. — 1 Brick. Dig., 114, § 74. This rule, however, can have no application to a cause where a sufficiónt’complaínt had already been filed therein in the justice ’s court, which complaint has, with the other proceedings, been sent in a certified transcript of the record to, and, filed .in, the appellate court. The trial may there proceed and be had on such original complaint, if sufficient, as. w.ell as on,.a new one. It can apply only to. those cases on appeal, where no sufficient complaint or statement of the cause, has been filed in the justice’s court, or, if filed, for any cause, has not been certified in the transcript of the recprd to the higher Court. — Littleton v. Clayton, 77 Ala. 571. But, in the absence of such complaint or statement, where one is required by the rule to be filed, after judgment by nil dicit, or on.verdict, without objection on account of a failure to file it, the defendant will be presumed to have waived it. — Heyman v. McBurney, 66 Ala. 511.
In this case, it appears, all papers pertaining to the *216cause were sent to the clerk of the circuit court by the justice of the peace, and that a transcript of - the record and proceedings before him in the cause was certified by him to the clerk, and the cause was tried without objection in any form to the complaint. Defendant can not be heard to raise objections to it, for the first time, in this court. — Moore v. Coolidge, 1 Por. 280; Hays v. Myrick, 47 Ala. 335; Drake v. Johnston, 50 Ala. 3; Ritch v. Thornton, 65 Ala. 310; Hayes v. Solomon, 90 Ala. 522.
Judgment was rendered on the 9 th day of January,-1893, and a motion to set aside the judgment was made on the 25th of March following, which was- overruled. - There is no bill of exceptions in the case. This ruling of the court can not be .considered. — Leinkauff v. Tuscaloosa S. & A. Co., 99 Ala. 619.
Affirmed.