Turner v. Roundtree

B.ICE, C. J. Even if there be an unauthorized and radical variance between the cause of action set forth in the amended complaint and that set forth in the original complaint, a motion to reject or strike out the amended complaint was the proper mode of claiming advantage of the variance. — Chapman v. Spence, 22 Ala. 588; Ex parte Ryan, 9 Ala. 89. By failing to make such motion, and filing- a general demurrer to the amended complaint, the defendant waived all objection arising out of the variance. Bryan v. Wilson, 27 Ala. 208; Cleveland v. Chandler, 3 Stew. 489; Callison v. Lemons, 2 Porter’s B. 145; Cobb v. Miller, 9 Ala. 499. It is true, that a departure in pleading may be taken advantage of, by general demurrer. — McAden v. Gribson, 5 Ala. 341. But such a departure never can occur in a complaint, nor until the replication ; and is entirely different from such a variance as we are now considering.— 1 Chitty’s Pl. 644. Although a general demurrer goes back to the first substantial defect in pleading, (1 Chitty’s Pl. 668 ;) yet it does not reach extrinsic matter, not disclosed on the face of the pleading. When an amended complaint is filed, and demurred to, it must be treated as if it were the original complaint, and properly filed. It becomes the pleading first in order; and a general demurrer to it cannot extend back to any thing behind it, but raises the single question, whether on its face, and without reference to any extrinsic matter, it is legally sufficient. — 1 Chitty’s Pl. 661. If it [709] be free from any defect in substance ,on its face, the demurrer to it should be overruled. . The amended complaint in this ease, to which the court below sustained the demurrer, is deemed by us legally sufficient. There was error in sustaining the demurrer to it; and therefore the judgment of the court below is reversed, and the cause remanded.