Barth v. Marcuse

The Court, Hoyt J., sustained the demurrer, and held that a motion to quash was the proper remedy, and the defect in the summons, if any, could not be taken advantage of by plea in abatement. Jones vs. Nelson, 51 Ala., 471. Barrill’s Practice, 107. Taggert, Stone & Earle for plaintiff. Simonds, Fletcher & Wolf for defendant. The practice of this Court is not a matter of plea. 1 Chitty’s Pleadings, 502, 523. Nichols vs. Nichols, 9 Wend., 263. Paul vs. Graves, 5 Wend., 96. No cases are found in the books where writs and the service thereof, have been set aside in any other way than by motion. This is settled practice. Baker vs. Wales, 45 How. Prac., 137. Carpenter vs. Spooner, 2 Sanf. 717.