Allen v. Claunch

7 Ala. 788

• Court: Supreme Court of Alabama
• Decided: January 15, 1845
• Status: Published

Opinion

ORMOND, J.

— The objections made to the declaration, are matters of form, and cannot be raised in this Court, setting forth as it does a substantial cause of action. The allegation that the note was “ delivered to James H. Allen,” is evidently a mere clerical misprision, which is amended by other parts of the record. The description of the date of the second note, that it was made “ on the day and year last aforesaid,” we understand to refer to the alledged date of the first note. But if we are mistaken in this, the objection could not be made on error; if the date of the note was blank, the time when it became due, being alledged, would be sufficient, no objection being made in the Court below.

Nor can it avail that there was no formal order made, that the proceedings be stayed until the maturity of the note, as the proceedings were in fact stayed. Nor was it necessary that an order should be made to continue the cause. The debt not being due when the suit was commenced by attachment, rendered it necessary to suspend all proceedings, until the debts matured and therefore the cause was continued at the intervening term, by operation of law.

The filing a declaration at the return term of the attachment, is not an irregularity which can be reached on error, as it could not, by possibility, cut off any defence, which the defendant might have desired to avail himself of, in the Court below.

It was not erroneous to submit the cause to a jury, though the Court might have rendered judgment upon the notes. It was a mere irregularity, which could not prejudice the defendant.

Let the judgment be affirmed.