English v. Brown , 9 Ala. 504 ( 1846 )

ORMOND, J.

Executors and administrators, where there are several who have qualified as such, constitute but one person, and must, in general, be joined in the writ. When, however, one of them is out of the jurisdiction of the court, and not amenable to its process, he may be omitted out of the writ. [Williams & Ivey v. Sims, 8 Porter, 579; Owen v. Brown, 2 Ala. Rep. 127.]

111 this case, it appears from the declaration, that Catherine English, the administratrix, is not a resident of this State, and this fact, which the default admits, is a sufficient reason for the discontinuance which is there entered. It is then the same as if she had been omitted from the writ, and the suit had been commenced against the resident administrator alone, which, from the case cited, would have been the correct mode of procedure, the English practice of proceeding against the absent defendant by process of outlawry, never having obtained in this State.

It is the established practice of this court, not to look to the indorsement on the writ, for the purpose of reversing the judgment, and even that a variance between the indorsement on the writ, and the declaration,' cannot be pleaded in abatement. [Wharton v. French’s, 9 Porter, 232; Williamson v. Powell, Ib. 493; Stephenson v. Roper, 5 Ala. Rep. 182.] The declaration is certainly exceedingly informal, but we are relieved from the necessity of inquiring whether it shows a cause of action, because its sufficiency is not questioned by any of the assignments of error. The practice of this court, from its earliest history, has been, to disregard a general assignment, which does not specify a particular error.

It remains but to consider the judgment. The judgment entered up against Catherine English, after the suit was discontinued as to her, was such a clerical misprision as could have been amended in the court below, on motion, and will therefore be amended here, at the cost of the plaintiff in error.