Hall & Curry v. Brazelton
Supreme Court of Alabama
Appeal from Circuit Court of Perry. Tried before Hon. M. J. Saffold. On the first day of December, 1865, the appellants sued out an original attachment against the appellee, returnable to the May term, 1866, of the circuit court of Perry county. At that term of said court the appellee pleaded in abatement of said attachment, that the affidavit did not state that the attachment “was not sued out for the purpose of vexing or harassing said defendant.”
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Appeal from Circuit Court of Perry. Tried before Hon. M. J. Saffold. On the first day of December, 1865, the appellants sued out an original attachment against the appellee, returnable to the May term, 1866, of the circuit court of Perry county. At that term of said court the appellee pleaded in abatement of said attachment, that the affidavit did not state that the attachment “was not sued out for the purpose of vexing or harassing said defendant.” The plea prayed judgment of said attachment, affidavit and complaint, and that they might be quashed. The cause was continued from time to time…
1Opinion of the CourtPeck, C. J.
The affidavit is clearly defective. The omission to state that th*e attachment was not sued out for the purpose of vexing or harassing the defendant, is an omission of matter of substance, and not of form merely, and therefore cannot be cured by amendment. Defects of form, only, in such an affidavit, are amendable. — Revised Code,.§ 2990; Hall & Curry v. Brazelton, 40 Ala. 406.
Under our present system of pleading, no objection can be made to the form of a plea, whether it be in bar or abatement of the action. Section 2638, Eevised Code, says a plea must consist of a succinct statement of the…
2Cases cited1 opinion
- Hall v. BrazletonSupreme Court of Alabama · 1867
3Cited by7 opinions
- Sloss-Sheffield Steel & Iron Co. v. MilbraSupreme Court of Alabama · 1911
- Mitchell v. Pitts & HenrySupreme Court of Alabama · 1878
- Mohr v. Chaffe Bros.Supreme Court of Alabama · 1883
- Taylor v. ElliottIndiana Supreme Court · 1875
- Ex Parte MartinCourt of Civil Appeals of Alabama · 1982
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