Comstock v. Meek & Co.

GOLBTHWAITE, J. — 1. The twelfth rule of practice was iiot intended, nor has it the effect, to limit the operation of the statute, which directs the course and time of pleading. By that the general rule is provided, that the declaration shall be filed within the three first days of the appearance term, and the defendant's plea must be filed within the three days next thereafter, but the pleadings are to be made up during the term to which the process is returned, unless the time is extended by the consent of the parties, their attorneys, or by the direction of the Court. [Clay’s Big. 332, § 111.] The twelfth rule merely directs that no plea in abatement shall be received, if objected to, unless by indorsement of the clerk it appears to have been filed within the time allowed for pleading. [Ib. 610, § 12.] The time allowed for pleading may be changed by the consent of the parties, and it here appears that the consent was given to enlarge the time for filing the declaration ; at least such is the inference most favorable for the plaintiffs, as otherwise they, were in default by the omission to file it, within the time provided by the act. If we understand the time as extended by consent, then the plea was within time, if filed in three days after the declaration, and if there was no consent, then it was alike within the time, as no plea can regularly be filed when there is no declaration to plead to. [Sturdevant v. Gaines, 5 Ala. Rep. 435.] Although the inference here is, that there was some consent rule entered into, we are not to be understood as expressing the opinion, that in any similar case the inference of consent could be so extended, as to allow the defendant to evade a trial, on the pretence that the declaration was not filed three days before the call of the cause for trial. 2. The exception to the deposition seems to fall within the [531] principle of the cases cited by the defendants. In the cases of Sanford v. Spence, 4 Ala. Rep. 237; Dearman v. Chapman, 5 Ib. 202; and Luckie v. Caruthers, Ib. 291, the certificates of the commissioners showed that the depositions were taken pursuant to the commissions respectively issued, but in all of them the manner of pursuing the commissions was not stated with, precision or exactness. Here the return is, that the deposition was taken by virtue of the commission. The remark made by us, in Sanford v. Spence, that it is difficult to perceive how an examination can be pursuant to, which is not in uniformity with, the directions of the commission, apply with equal force to the term, by virtue of the commission. The only plausible reason urged for the suppression of the deposition is, that the party might have attended at the place named for the purpose of cross-examination ; now if this fact had been shown by affidavit, and the return of the commissioner was not as exact as it might be, this would, doubtless, be a sufficient reason to suppress the deposition, verified alone by such a certificate. As it stands uncontradicted, the inference is, from the certificate, that the deposition was taken by virtue of the commission, and that all its requisitions were complied with. Judgment affirmed.