Sharman v. Jackson
Supreme Court of Alabama
Appeal from the Circuit Court of Macon. Tried before the Hon. Bobert Dougherty. This action was brought by Harriet Jackson, against Thomas S. Sharman; and was commenced by original attachment, sued out on the 5th day of December, 1859, on the ground that the defendant was a non-resident, and was indebted to the plaintiff in the sum of two hundred and twenty-two dollars.
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Appeal from the Circuit Court of Macon. Tried before the Hon. Bobert Dougherty. This action was brought by Harriet Jackson, against Thomas S. Sharman; and was commenced by original attachment, sued out on the 5th day of December, 1859, on the ground that the defendant was a non-resident, and was indebted to the plaintiff in the sum of two hundred and twenty-two dollars. A complaint was filed in. the cause at the Fall term, 1866, in these words : “ The plaintiff claims of the defendant three hundred dollars, due by account on the 1st day of January, 1859; also, two hundred and twenty-two…
1Opinion of the CourtPeok, C. J.
The demurrer to the complaint was properly overruled. We know of no authority permitting a demurrer for an alleged departure in the complaint from the writ of attachment. The usual remedy, in such a case, is to move the court to strike the complaint from the files; but such a motion should not be sustained unless there is a total variance — a radical departure. — Otis v. Thorn, 18 Ala. 395; Chapman v. Spence, 22 Ala. 588; Smith v. Wiley, 19 Ala. 216; Morrison v. Taylor, 21 Ala. 797. The alleged departure, in this case, consists of an unimportant variance between the amount of the debt, as…
2Cases cited4 opinions
- Walker v. ClaySupreme Court of Alabama · 1852
- Chapman v. SpenceSupreme Court of Alabama · 1853
- Otis v. ThornSupreme Court of Alabama · 1850
- Smith v. WileySupreme Court of Alabama · 1851
3Cited by1 opinion
- Mann v. RudderSupreme Court of Alabama · 1932