Ferguson v. George's

42 Ala. 135 | Ala. | 1868

A. J. WALKER, C. J.

The only specific matter of error imputed to the record is, that in the margin of the complaint, the name of one of the defendants is written E. H. Pickens, while in the summons it is Eli H. Ferguson.

This variance between the summons and complaint, if available anywhere, cannot be taken advantage of on error, when no objection was made in the court below. A variance between the writ and declaration, was a matter pleadable in abatement. The complaint contains a substantial cause of action, and that is enough on error. The question of the allowance and necessity of amendment does not arise here, but may be presented in the court below.

Affirmed.