Herring v. Kelly & Co.

96 Ala. 559

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

WALKER, J.

The defendant having interposed a plea in abatement upon the ground that the writ of attachment was directed “to the sheriff or any constable of the said county,” instead of in the mode the statute prescribes, which is, “To any sheriff of the State of Alabama” (Code, § 2941); the plaintiff was allowed to amend the writ so as to make the direction follow the form prescribed by the statute. The allowance of the amendment was proper, under the statute permitting the plaintiff, before or during the trial, “to amend any defect of form or of substance in the affidavit, bond, or attachment.” — :Code, § 2998; Peebles v. Weir, 60 Ala. 413. The amendment obviated the objection raised by the plea in abatement, conceding that the provision of tlie statute (Code, § 2941,) that “no objection shall be taken for any defect in form, if the essential matters are set forth,” did not itself render the objection unavailing.

Affirmed.