Nashville & Chattanooga Railroad v. Wade

61 Tenn. 444

• Court: Tennessee Supreme Court
• Decided: December 15, 1873
• Status: Published

Opinion

NicholsoN, C. J.,

delivered tbe opinion of tbe Court.

Tbe writ in this case was issued and served on the defendants by a wrong name. Before filing declaration plaintiff obtained leave to amend the writ by inserting tbe true name. Declaration" was then filed and defendant put in tbe plea of not guilty. Two terms afterwards defendant obtained leave to file a plea in abatement; but, on motion of tbe plaintiff, •at tbe same time, tbe Court struck out tbe plea, and tbe cause was tried on tbe plea in bar.

There was no ground for a plea in abatement for misnomer, after the amendment was made, and especially after plea in bar and two terms after the amendment and filing of the' declaration. Heisk. Dig., 6-7.

The Court erred in allowing the plea in abatement to be filed, but corrected the error by striking out the plea and trying the cause on the plea in bar.

This being the only error assigned and relied on, the judgment is affirmed.