Jones & Co. v. Donnell , 9 Ala. 695 ( 1846 )

GOLDTH WAITE, J.

1. The first plea in abatement was properly overruled, because the defendant cannot traverse or put in. issu^ the grounds on which.the process is sued out. The statute, ii, is true, uses the term original attachment, but we have repeatedly held, these ancillary proceedings are ' governed by the same rules. The distinction pointed at by the statute is, between original and judicial attachments.

2. The demurrer to the rejoinder to the replication to the third plea presents the question whether the alteration of the term of a court by statute, carries with it and saves all process then issued, and returnable to the term as fixed by the pre-existing laws. We do not consider this a debateable matter, for every one must take notice of the periods at which courts are to be holden; and process, continuances, and other matters are understood, not with reference to the statutes, as they are when the proceedings may he originated, but ac-cording also, to such changes as the sovereign authority may direct. In Walker v. The State, 6 Ala. Rep. 350, we considered the surety to a recognizance, as bound to take notice of the change of time in holding the term of a court, and that decision seems to be conclusive of the matter now presented. The demurrer was properly sustained.

3. When a demurrer to a plea in abatement is sustained, the formal judgment is one of respondeas ouster, but in practice with us, this is rarely, if ever, entered, and the judgment entry merely recites, that the demurrer was overruled. If the defendant wishes to plead over, he is permitted to do so, and if he doesjnot, no injury accrues. [Massey v. Walker, 8 Ala. Rep. 167.] If the parties go to trial upon an issue arising upon a plea in abatement, then the judgment is final if against the defendant, and the damages may be assessed. [Chitty’s Plead, 403.] This is said to be the consequence of pleading a false plea, the effect of which, if found true, is to abate the suit. There was then no error in refusing to permit the party to plead over to the action, and if again submitted to the jury on the general issue, or any special defence, no injury has accrued to the defendant. But if, as the defendant supposes, and as the entry indicates, the cause was submitted to another jury, after the first had rendered-their verdict on the issue in abatement, it is not an irregularity of which the party can complain, as no injury to him could possibly result from it. The other points raised, are too unimportant to require consideration, as there is no question the erroneous conclusion of the replication to the country is not a ground of general demurrer.

Judgment affirmed.