Barrow v. Pagles

6 Ala. 462

• Court: Supreme Court of Alabama
• Decided: January 15, 1844
• Status: Published

Opinion

ORMOND, J.

Tlrs case is, in all respects, libe the one between the same parties, [p. 432.] except that it is not alleged that the affirmance of the judgment by the supreme court appears, by the cert ficate of the clerk. But the omission of prout patet per record,urn, can only be taken advantage of, by special demurrer; [1 duty’s Plead.ngs, 358;] and as by our statute, all special demurrers are to have only the effect of general demurrers, it results that the om.ss.on cannot be taken advantage of. Nor can any injury poss.bly result from this view, inasmuch as it will always be in the power of the defendant, by the plea of nul tiel record, to put the plaint,if on proof that there is such a record remaining in the court, out of which the scire facias issues.

Let the judgment be reversed, and the cause remanded.