Code of Alabama
Ala. Code § 6-8-101 (2026)
Litigation on Merits After Loss on Certain Defenses Not Bar to Raising of Same Defenses on Appeal.
✓ official Alabama Legislature (ALISON) text, current July 2026
A party may raise the defenses of (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process and, losing thereon, proceed to litigate on the merits; and, losing on the merits, the party may appeal and, on appeal, attack the judgment both on the merits and on such grounds (1) through (5) as he urged below.
(Code 1852, §2255; Code 1867, §2658; Code 1876, §3007; Code 1886, §2692; Code 1896, §3305; Code 1907, §5370; Code 1923, §9517; Code 1940, T. 7, §242.)
Notes of Decisions
Cited in 7
cases (1 in the last 5 years), 1989–2024 · leading case: Elmore Cnty. Com'n v. Ragona, 540 So. 2d 720 (Ala. 1989).
Elmore Cnty. Com'n v. Ragona, 540 So. 2d 720 (Ala. 1989). “and, losing thereon, proceed to litigate on the merits; and, losing on the merits, the party may appeal and, on appeal, attack the judgment both on the merits and on such grounds (1) through (5) as he urged below.”
Isbell v. Smith, 558 So. 2d 877 (Ala. 1989). “Isbel, in losing on the merits before the trial court, properly raised this venue issue on appeal pursuant to Code 1975, § 6-8-101; but see, Elmore County Comm'n v.”
Johnson v. Hooks, 692 So. 2d 843 (Ala. Civ. App. 1997). “Section 6-8-101, Ala. Code 1975, allows a party to raise the question of transfer on appeal from an adverse judgment on the merits.”
Wilson v. Avant, 227 So. 3d 1223 (Ala. Civ. App. 2017). “, nor by raising the issue in her brief on appeal from the subsequently entered default judgment as would have been permitted under Ala. Code 1975, § 6-8-101(3). We thus do not reach the venue issue here.”
Ex parte Foremost Ins. Co., Grand Rapids, Michigan Karen Bradford & Bradford Agency, LLC PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Larry Knight v. Foremost Ins. Co., Grand Rapids, Michigan Karen Bradford & Bradford Agency, LLC) (Clarke Circuit Court: CV-21-900014). (Ala. 2024). “" § 6-8-101, Ala. Code 1975 (emphasis added).”
Chism v. Ala. Dep't of Labor (In re Ala. Dep't of Labor), 265 So. 3d 272 (Ala. Civ. App. 2018). “See Ala. Code 1975, § 6-8-101 (providing that a party may raise, among other defensive grounds, lack of subject-matter jurisdiction "and, losing thereon, proceed to litigate on the merits; and, losing on the merits, the party may appeal and, on appeal, attack the judgment both…”
Chism v. Ala. Dep't of Labor (In re Ala. Dep't of Labor), 265 So. 3d 272 (Ala. Civ. App. 2018). “See Ala. Code 1975, § 6-8-101 (providing that a party may raise, among other defensive grounds, lack of subject-matter jurisdiction "and, losing thereon, proceed to litigate on the merits; and, losing on the merits, the party may appeal and, on appeal, attack the judgment both…”
— Ala. Code § 6-8-101(3) — 1 case
Wilson v. Avant, 227 So. 3d 1223 (Ala. Civ. App. 2017). “, nor by raising the issue in her brief on appeal from the subsequently entered default judgment as would have been permitted under Ala. Code 1975, § 6-8-101(3). We thus do not reach the venue issue here.”
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