Turner v. Brown , 9 Ala. 866 ( 1846 )

ORMOND, J.

The motion to strike the declaration from the files, for a variance between that and the writ, was addressed to the discretion of the court below, and cannot be revised here. The appropriate mode of taking advantage of siich an omission, or defect, is, by plea in abatement, if that is not done the court is not under an imperious necessity, of acting in this summary way.

The omission in the declaration, to insert the name of one of the plaintiffs, could, as already observed, have been taken advantage of by plea in abatement, or afterwards upon the trial of the' cause, by an objection to the admissibility of the evidence for the variance between the note declared on, and the one offered in proof. But when the defendant, as in this case, permits judgments to be taken by nil dicil, all such clerical omissions, or mistakes, are cured by the statute of jeofails. That statute declares that “ No summons, writ, declaration, return, process, judgment, or other proceedings, shall be abated, quashed, or reversed, for any defect or want of form, &c. &c., or any mistake in the Christian name, or sir-name of either party, sum of money, Ifc., in the declaration, or pleading, the name, sum, &c. being right in any part of the record, or proceedings ; and may at any time, permit either of the parties to amend any defect in the process, or pleadings, upon such conditions as the said courts respectively shall, in their discretion, and by their rules prescribe.” (Clay’s D. 331, § 50.)

The obvious and acknowledged design of this healing statute, was to extirpate all unnecessary litigation, by authorizing the amendment of any mistake of form, which was distinctly pointed out, in the process or pleadings, whilst the cause was in progress. If the opposite party lies by, and permits a judgment to be rendered, he cannot be heard after-wards to object to a matter of form, which was amendable, whilst the cause was in fieri. After judgment, the statute amends all defects of mere form, if the entire record furnishes the means of doing it.

In this case, if the objection had been taken in the Court below, it could have been amended, so as to make the declaration correspond with the writ, it being evidently a mere clerical omission. It cannot be taken after judgment.

Let the judgment be affirmed.