Maverick v. Duffee
Supreme Court of Alabama
Writ of error to the Circuit Court of Tuscaloosa county. ACTION of debt. Plea in abatement of the action, because a copy of the writ was not served on the defendant as required by law, in this, that the paper purporting to be such copy, required the defendant to appear on the first Monday in February* 1839. Demurrer and judgment thereon, in favor of the defendant.
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Writ of error to the Circuit Court of Tuscaloosa county. ACTION of debt. Plea in abatement of the action, because a copy of the writ was not served on the defendant as required by law, in this, that the paper purporting to be such copy, required the defendant to appear on the first Monday in February* 1839. Demurrer and judgment thereon, in favor of the defendant. The plaintiff then replied to the plea, and an issue being, formed, to the country, was found in favor of the defendant, who had judgment. The judgment on the demurrer is assigned as error. cited Aikin’s Dig. 278, § 111, and…
1Opinion of the Court
GOLDTHWAITE, J. —
-1. The officer serving the writ, is directed by the statute to leave a copy with the defendant^ at the *434time of service, (Aik. Dig. 278, § 112;) but this provision was not intended to confer a right on the defendant to avoid the process, if the copy was not served. It was, in our opinion, to relieve the plaintiff from the necessity of serving a copy of the declaration. We are not aware that it has ever been held, either in England or in these States, where this practice yet obtains, that a mistake in the declaration would render the service of the writ nugatory. If injustice…
2Cited by6 opinions
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- Dew v. CunninghamSupreme Court of Alabama · 1856
- Jones v. Nelson'sSupreme Court of Alabama · 1874
- Lenoir v. Broadhead's AdministratorSupreme Court of Alabama · 1873
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