7 Ala. 528 | Ala. | 1845
— 1. The twelfth rule of practice was iiot intended, nor has it the effect, to limit the operation of the statute, which directs the course and time of pleading. By that the general rule is provided, that the declaration shall be filed within the three first days of the appearance term, and the defendant's plea must be filed within the three days next thereafter, but the pleadings are to be made up during the term to which the process is returned, unless the time is extended by the consent of the parties, their attorneys, or by the direction of the Court. [Clay’s Big. 332, § 111.] The twelfth rule merely directs that no plea in abatement shall be received, if objected to, unless by indorsement of the clerk it appears to have been filed within the time allowed for pleading. [Ib. 610, § 12.] The time allowed for pleading may be changed by the consent of the parties, and it here appears that the consent was given to enlarge the time for filing the declaration ; at least such is the inference most favorable for the plaintiffs, as otherwise they, were in default by the omission to file it, within the time provided by the act. If we understand the time as extended by consent, then the plea was within time, if filed in three days after the declaration, and if there was no consent, then it was alike within the time, as no plea can regularly be filed when there is no declaration to plead to. [Sturdevant v. Gaines, 5 Ala. Rep. 435.] Although the inference here is, that there was some consent rule entered into, we are not to be understood as expressing the opinion, that in any similar case the inference of consent could be so extended, as to allow the defendant to evade a trial, on the pretence that the declaration was not filed three days before the call of the cause for trial.
2. The exception to the deposition seems to fall within the
Judgment affirmed.