Odom v. Shackleford

44 Ala. 331

• Court: Supreme Court of Alabama
• Decided: January 15, 1870
• Status: Published

Opinion

B. F. SAFFOLD, J.

This suit was commenced by attachment for rent.

The complaint contains two counts, according to the form prescribed by the Code, for the breach of an independent agreement. The demurrer to it was properly overruled. A variance between, the affidavit and attachment and the complaint can not be taken advantage of by demurrer.— Vandyke v. The State, 24 Ala. 81; Cain v. Mather, 3 Por. 224.

There was no error in allowing the sheriff to amend his return so as to make it speak the truth. — McArthur v. Carrie's Adm’r, 32 Ala. 85.

Section 2809 of the Revised Code authorizes the amendment of the complaint by striking out or adding new parties plaintiff or defendant. Section 2559 makes all joint promises or covenants in writing several, as well as joint. In this case, if the agreement of the parties was in writing, the amendment of the complaint, by striking out the defendant Roberts, was permissible. If not, it was an error. The record does not inform us whether it was verbal or written. The presumption must be in favor of the -action of the court. If the plaintiff desired a judgment against both defendants, the proper practice would have been to continue the cause to await the result of the proceeding in bankruptcy. — Bankrupt Law, § 14. He was, however, entitled to his election, so far as the record discloses the facts.

The judgment is affirmed.