Turner v. Brown
Supreme Court of Alabama
Writ of Error to the Circuit Court of Butler. Assumpsit by the defendants, against the plaintiffs in error. The writ is sued out by Angus Brown and George Reese, who sue for the use, &c. The declaration is in the name of Angus Brown, who sues, Spc. To which the plea of non assumpsit was filed.
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Writ of Error to the Circuit Court of Butler. Assumpsit by the defendants, against the plaintiffs in error. The writ is sued out by Angus Brown and George Reese, who sue for the use, &c. The declaration is in the name of Angus Brown, who sues, Spc. To which the plea of non assumpsit was filed. After the cause had been put to the jury, the defendants moved for leave tp withdraw their plea, which the court granted: They then moved the court to strike the declaration from the file of papers in the cause, which the court refused, and the defendants excepted; and declining to plead, the court,…
1Opinion of the CourtOrmond, J.
The motion to strike the declaration from the files, for a variance between that and the writ, was addressed to the discretion of the court below, and cannot be revised here. The appropriate mode of taking advantage of siich an omission, or defect, is, by plea in abatement, if that is not done the court is not under an imperious necessity, of acting in this summary way.
The omission in the declaration, to insert the name of one *868of the plaintiffs, could, as already observed, have been taken advantage of by plea in abatement, or afterwards upon the trial of the' cause, by an objection to the…
2Cited by2 opinions
- Wright v. SnedecorSupreme Court of Alabama · 1871
- Summerlin v. DowdleSupreme Court of Alabama · 1854