Slaton v. Apperson , 15 Ala. 721 ( 1849 )

DARGAN, J.

The only ground for quashing the proceedings, and'setting aside the judgment rendered by the justice, was, that the levy had been made in Dallas county. This objection is only to the service of the attachment.' It is very clear, that the constable of' Perry,- had no authority to execute the writ in Dallas; but we do not think that the defendant can set aside this levy, byan appeal to the circuit court. The statute provides, that in all Cases of appeals from'a justice of the peace, the trial shall be had on the merits. Clay’s Dig. 315. The defence set up by the defendant, was not to the merits, but extended to the service of the process merely. We do not think that he can be permitted, for the first time, to object to the service of the writ, in the circuit court. Such a defence is not to the merits, but is in abatement, and should not have been allowed. See Carter, Hagan and Plowman v. Douglass, 2 Ala. 499; Hill and Proctor v. White, 1 Ala. 576.

The judgment must be reversed, and the cause remanded.