Mohr v. Chaffe Bros.

BB.ICKELL, C. J. 1. The assignments of error relating to the action of the city court in overruling the motions to dismiss and to strike from the files, do not present matter which on error is revisable. They were but the equivalent of a motion to quash the attachment, because of defects or irregularities in the affidavit, bond and writ; and it has long been settled that such a motion is addressed to the sound discretion of the primary court, and may, without error, be overruled, putting the party to a plea in abatement, which is the more appropriate mode of taking advantage of the defect or irregularity, if it exists.—1 Brick. Dig. 164, §§ 151-54; Free v. Howard, 44 Ala. 195; Hall v. Brazelton, 46 Ala. 359; DeBardeleben, v. Grosby, 53 Ala. 363 ; Watson v. Auerbach, 57 Ala. 353; Murphy v. Egger, 59 Ala. 639. The statute is framed with reference to this practice.—Code of 1876, § 3314. 2. Pleas in abatement were not favored at common law. Matters of form were regarded as matters of substance; and an improper conclusion or prayer, or any defect of form, was as fatal as a defect of substance in a plea in bar. The statute has now placed pleas in bar and pleas in abatement on the same footing in respect to form. Whether a plea is in bar, or in abatement, is ascertained by the subject-matter and prayer, not by its form ; and whether in bar, or in abatement, the plea is sufficient, if the facts are so stated that a material issue can be taken thereon.—Code of 1876, §§ 2987, 2990 ; Hall v. Brazelton, 46 Ala. 359. “ The criterion or leading distinction between a plea in abatement and a plea in bar is, that the former must not only point out the plaintiff’s error, but must show him how it may be corrected, and furnish him with materials for avoiding the same mistake, in another suit in regard to the same cause of action ; or, in technical language, must give the ' plaintiff a better writ.”—1 Chit. Pl. (16th Am. Ed.) 362. If it be of misnomer, the true name must be stated, that it may be correctly stated in another suit. If it be of the non-joinder of parties, the parties omitted must be stated. If it be of defects in the process, these defects must be distinctly pointed out, so that on suing out new process they may be avoided. This is essentially matter of substance in a plea in abatement— the material facts on which the .plea is founded.—Jones v. [390] Nelson, 51 Ala. 471; Wilson v. Nevers, 20 Pick. 20. The plea interposed in abatement craves oyer of the affidavit, the bond, and the writ, and sets them out; but it does not specify or point out any defect or irregularity in either, and, of consequence, does not furnish the plaintiff the means of avoiding them in a new suit, or of curing them by amendment, if under the statute of amendments they are curable. It is violative of the policy of the law in reference to dilatory pleas, and in derogation of the whole theory and doctrine of amendments, to entertain a plea so vague and indefinite. The demurrer to it was properly sustained. 3. The allowance of the amendments was authorized by the statute.—Blair v. Miller, 42 Ala. 308 ; Code of 1876, § 3315. The execution of a sufficient bond, conforming to the amendments, is expressly authorized by the statute. Let the judgment be affirmed.