Cotton v. Huey & Co.

4 Ala. 56 | Ala. | 1842

ORMOND, J.

The act under which this plea was filed declares, in substance, that no one shall serve or execute upon Sunday, or the first day of the week, any “writ, process, order, warrant, judgment or decree,5’except in criminal cases, or for a breach of the peace, unless oath be made by two reputable persons, that the person on whom the process is to be served intends to withdraw himself and escape from this territory under cover and protection of the said first day of the week, commonly called Sunday, and that service on that day, without the oaths of two persons as aforesaid, shall be utterly void to all intents and purposes. [Aik. Dig. 440.]

We entertain no doubt that the Legislature intended to include in the prohibition all civil process. The terms employed are as comprehensive as the language affords, to include every description of civil process. The proceeding by attachment is as much a suit as if commenced in the ordinary mode, by capias, the warrant being by the attachment law declared the leading process in the suit. A similar statute in England has always received a liberal interpretation to advance the manifest design of the Legislature. [Taylor v. Philips, 3 East. 155.] The obvious design of the Legislature was to prevent the spread of vice and immorality by the desecration of the first day of the week to common secular purposes, unless justified by the necessity of the case. In addition we are clearly of opinion that the service of an attachment is within the letter of the prohibition.

We think* however, that the objection of the defendant's counsel, that advantage cannot be taken of it in this mode, must be sustained. The proper mode of taking advantage of any defect in process, or irregularity in the service, is by motion to the court to stay proceedings. [1 Sellon’s Practice, 101.] This was in effect decided by this court in Maverick v. Duffie, [1 Ala. Rep. 433,] where it was held that a plea in abatement that no copy of the writ was served on the defendant was bad on demurrer, but that a motion should have been made to the Court to set aside the process for irregularity. This was the course pursued in the case of Taylor v. Phillips, cited from 2 East. 155, where the process was set aside because served on Sunday, under a statute like ours even after acts by the defendant which, if the service had not been absolutely void, would have been a waiver.

The impropriety of the course attempted in this case will be obvious when we consider the nature of a plea in abatement, which must give the plaintiff a better writ. Now, here there is no objection to the writ, but an irregularity is complained of in its service. This is an objection which does not reach the writ, and therefore does not abate it.

It results from this examination, that there is no error shown by the record, and the judgment must be affirmed.