The appellee, as plaintiff, sued the appellant in unlawful detainer in a justice's court in Franklin county and recovered judgment. The appellant appealed to the circuit court, where the appellee again recovered a judgment in a trial de novo before a jury. This appeal is on the record only.
The justice's transcript shows that the summons was duly served on the defendant, and that on the appointed day the parties appeared before the justice, who rendered judgment for the plaintiff on the evidence adduced; that thereupon the defendant appealed to the circuit court and demanded a trial by jury. The record shows that the justice had jurisdiction of the subject-matter of the suit, and also of the parties. On appeal the trial was de novo, "according to equity and justice, without regard to any defect in the summons, or other process, or proceedings before the justice." Section 8784, Code 1923.
The judgment entry in the circuit court recites that the plaintiff came in person and by his attorneys, "and the defendant by attorney, and the defendant makes motion for continuance, and the same being duly considered and adjudged by the court, * * * the same is overruled. The plaintiff refiles the complaint filed in justice court, and issue being joined between the plaintiff and the defendant, thereupon came a jury, etc."
It appears that the trial justice was a justice in and for Franklin county, and that the land involved was situated in that county. The record presents no question of venue; but, even if it appeared that the land was not situated in the justice's precinct, the objection could have been availed of only by plea in abatement. Cleveland v. Little Cahaba Coal Co.,205 Ala. 369 (7), 87 So. 567.
As to the defendant's appearance in the circuit court, it is hardly necessary to observe that his appeal brought him into that court and kept him there subject to the call of his case for trial until it was disposed of. Cleveland v. Little Cahaba Coal Co., supra, headnote 2. In such a case there can be no such thing as a special appearance by him for the purpose of making a motion.
We find no defect in the record which can suffice to avoid the judgment appealed from, and it will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur. *Page 10