Schuessler & Co. v. Wilson

STONE, J. The complaint offered to be filed in this cause ■was not such a departure from the cause of action stated in the summons before the justice, as that it should have been rejected on that account. If the action had been commenced in the Circuit Court, by summons and complaint in the common form, the court would have allowed the complaint tobe so amended, as to set forth a cause of action for which “ the separate estate of the wife is liable ” under section 2376 of the Revised Code. — Reed v. Scott, 30 Ala. 640; Smith v. Plank Road Co., 30 Ala. 650; Harris v. Plant, 31 Ala. 639; Russell v. Erwin, 38 Ala. 44; Longmire v. Pilkington, 37 Ala. 297. In the case of Ravisies v. Stoddart, 32 Ala. 599, this court adjudged the complaint bad, in that it did not describe the property which composed the wife’s estate, sought to be charged. The judgment of the Circuit Court was reversed, and the cause remanded; doubtless, that the complaint might be amended in the court below. This being the rule in ordinary cases commenced in courts of record, for a much stronger reason should the proposed amendment be allowed in a case of appeal from a justice’s judgment, which is “ tried according to equity and justice, without regard to any defect in the summons or other proceeding before the justice.” — -Rev. Code, §2772 ; 1 Brick. Dig. 112, §55. It is urged, as a reason why we should not reverse the ruling of the Circuit Court, that the record fails to show any exception to the court’s ruling, saved by appellant. True, the record says, “the defendant [appellee here] thereupon excepted.” If these words stood alone and unaided, we would treat the exception as not well taken. But they dp not stand alone. The context shows unmistakably that it was the plaintiff below (appellant here) who reserved the exception. The defendant below (appellee here) filed objections to the allowance of the amended complaint offered, seven in number, which are set out. The bill of exceptions then proceeds as follows: “And the court sustained said objections, and refused to allow said declaration to be filed; and to this [519] ruling of the court the defendant thereupon excepted, and, in consequence of the adverse ruling being unable to proceed further with his case, he thereupon took a nonsuit, with leave to file a bill of exceptions; and plaintiffs now tender this their bill of exceptions, which is signed and sealed,” (fee. The insertion of the word defendant is a mere clerical misprision, as is fully explained by the context. — Smith v. Branch Bank, 5 Ala. 26; Lamkin v. Dudley, 34 Ala. 116; Tilman v. McRae, 8 Ala. 677. In refusing to allow the amended complaint to be filed, the Circuit Court erred. We find in the transcript a claim of exemption. Such claim, if made by one who is a resident of this State, and properly pleaded and proved, is a good defense in favor of a married woman, whose estate is sought to be made subject to a debt for “articles of comfort and support of the household,” under the statute — Bender v. Meyer & Co., at present term. The judgment of the Circuit Court is reversed, the nonsuit set aside, and the cause remanded.