Opinion
6 Div. 228.
January 24, 1929.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
Arlie Barber, of Birmingham, for appellant.
In all bills in equity, a prayer for process is necessary. 1 Daniel on Ch. Pr. 444; Walker v. Hallett, 1 Ala. 379; Chancery Rule 17, 4 Code 1923, p. 912; Sims Ch. Pr. §§ 161, 294; Story's Eq. Pl. § 44; Jackson v. Putman, 180 Ala. 39, 60 So. 61. Counsel argues other questions not necessary to be here set out.
McCollough McCollough, of Birmingham, for appellee.
Prayer for process is a necessary part of the bill, but, unless this defect is raised by original demurrer and before defendant has filed answer, the defect cannot be raised later. Sims Ch. Pr. § 446; Elyton Land Co. v. Denny, 108 Ala. 553, 18 So. 561; Bates v. Chapman, 108 Ala. 225, 19 So. 837. The defects pointed out on former appeal have by amendment been fully cured.
The bill as amended since the first appeal in this cause (Martin v. Baines, 217 Ala. 326, 116 So. 341), as before, fails to pray for process against appellant, who in the stating part of the bill is more than once referred to as "respondent"; but we think this defect in the bill should not avail anything at this time, for the reason that appellant not only demurred to the bill but answered the averment of facts before offering to take advantage of the point. Jackson v. Putman, 180 Ala. 39, 60 So. 61.
In our opinion on the first appeal, the bill was held to be defective for reasons pointed out on page 330 of 217 Ala. ( 116 So. 341). These defects were cured on remandment of the cause. Other objections now taken against the bill were considered on the first appeal. 217 Ala. 326, 116 So. 341. The court is satisfied with the conclusions stated on that appeal.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.