Wright v. Snedecor

PECK, C. J. The court below erred in sustaining the demurrer to the plea in abatement. It is a general rule of pleading, that the declaration must correspond with the process. If the writ discloses one cause of action, and the plaintiff declares on substantially a different cause of aq [97] lion, the defendant may plead the variance in abatement. Summerlin v. Dowdle, 24 Ala. 428 ; Curry & Co. v. Payne, adm’r, 3 Ala. 154; Turner et al. v. Brown et al., 9 Ala. 866; Palmer v. Lesne, ib. 743. Although I have not been able to find, in our Eeports, a case in all respects like the present, sustaining a plea in abatement for a variance between the affidavit and attachment and the complaint, I find many cases in principle analogous to it. In the case of Burt v. Parish, (9 Ala. 21,) it is decided, that defects in the bond and affidavit made on sueing out an attachment are not available on error, unless the exception has been taken by plea in abatement in the court below. So in Jones v. Pope, (6 Ala. 154,) it is held, that the want of a bond and affidavit, in a suit commenced by attachment, must be taken advantage of by plea in abatement. Again, in the case of Cobb v. Force, Brothers & Co., (6 Ala. 460,) the court decides, that in an attachment by one non-resident against another, the affidavit should show that the defendant has not sufficient property within the State of his residence to satisfy the debt, within the knowledge or belief of the person making the affidavit, and if it fails to do this, the defect is sufficient to abate the attachment when pleaded. And in the case of Roberts v. Burke, (6 Ala. 348,) it is held, that where a suit is commenced by attachment, the attachment is the initiatory process in the cause, and a variance between it and the declaration can not be reached by a demurrer, thereby clearly intimating that it might be by a plea in abatement. Without citing other cases on this subject, we hold, that a material variance between the cause of action stated in an affidavit and attachment, and that described in the complaint, may be pleaded in abatement. If a variance between the writ and declaration is a good ground for a plea in abatement, there is no good reason why it should not be for a variance between the affidavit and attachment, and the complaint. In this case, the variance between the cause of action described in the complaint, and that stated in the affidavit and attachment, is manifest and material. That stated in [98] the affidavit and attachment creates a joint common-law liability against the defendants, to which the coverture is a good defense as far as the wife is concerned; whereas, the cause of action described in the complaint is special and peculiar in its character, and has no ^existence independent of section 2376 of the Revised Code. By that section, a new action unknown to the common law is given to a creditor, against husband and wife, to enable him, without being compelled to resort to a court of equity, to subject the separate estate of the wife to the payment of his debt, provided it be a debt of the character described in said section of the Code. The view which is here taken of this question disposes of the case, and renders it unnecessary to decide the others raised by the bill of exceptions. They will probably not arise on another trial. One of these questions is, can an attachment be issued against husband and wife, to enforce the payment of a debt contracted under said section 2376 of the Revised Code? So far as we know, this question has never, before this, been presented in this court for decision, and, as it is a new question, and can not be said to be free from difficulty, and not required to be now decided, we prefer to leave it an open question, to be disposed of when a case arises making its decision necessary. Let the judgment of the court below be reversed, and the cause remanded, &c.