56 Ala. 54 | Ala. | 1876
The present statute (It. 0. § 2561), in reference to branch summons against a joint defendant, residing in another county than that in which suit is instituted, is a substantial re-enactment of the former statute, as found in Clay’s Digest, 322, § 59. We do not doubt the correct practice, under the present, as it was settled under the former statute, is to make eaqh summons a counterpart of the other. Mayo v. Stonum, 2 Ala. 390. A variance between them is available, however, only by plea in abatement, filed at the return term of the process, as required by the rules of practice ; not by a motion to. strike from the files, made at a subsequent term, when the cause is called for trial. — Mayo v. Stonum, supra ; Johnson v. King, 20 Ala. 270.
2. The present statute of amendments (B. C. §§ 2807-10) is broad and liberal, and was intended to cure all mere defects of form which the record furnishes the means of amending, and which do not reach or touch the substantial merits of the cause, and are incapable of working injury. The omission of the name of each defendant, in the original and branch summons, was a mere formal defect, incapable of misleading as to the real character of the suit, or the cause of action on which it was founded. If the variance between the two summonses had been pleaded in abatement, the court should have allowed its correction by amendment.
We find no. error in the record, and the judgment is affirmed.
