Jones v. Nelson's
51 Ala. 471
Ala.
1874
Check Treatment
BRICKELL, J.

Generally, a plea in abatement of process must give the plaintiff a better writ. It points out defects, which, if sufficient to quash, can be avoided on suing out new process. The defect must be apparent on the face of the writ, if the matter of the plea is not a misnomer. Here, no defect in the summons or complaint, which the plea prays may be quashed, is alleged. It is not denied that these are sufficient in form and substance. The irregularity complained of is, not serving the defendant pleading with a correct copy of these. If the plea had been sustained, better process would not have been given the plaintiff. New process, in the same form, could have been sued out, and its sufficiency would have been indisputable. Hence, a defective or irregular service of process is not matter in abatement, but is ground of motion to set aside the service. Maverick v. Duffee, 1 Ala. 433. Such motion is addressed to the sound discretion of the court, and it will always be exercised, so as to prevent an injury to the defendant. If it was matter of plea in abatement, serious injury would often result to the plaintiff, who, in framing and suing out his process, conformed to the law. The process would be quashed, because of the errors of the ministerial officers of the court, and he would be driven to a new suit; and in the mean time the statute of limitations might have perfected a bar. The only injury to the defendant was an irregular service, capable of correction by a regular service ; while that to the plaintiff is of a graver character, and irreparable. The court did not err in sustaining the demurrer to the plea in abatement.

2. Nor did the court err in permitting the plaintiff to amend the complaint, by striking out the name of the defendant Rittenhouse Moore. He was not sued in a representative capacity, as the administrator of Sydenham Moore (a maker of the note, averred in the complaint to have died), but individually. He was not a maker of the note, and was, therefore, improperly joined as a defendant. The statute authorizes the striking out or adding of parties, plaintiff or defendant; and *473its purpose was to cure defects of misjoinder or nonjoinder of parties, plaintiff or defendant, without turning the case out of court. Laird v. Moore, 27 Ala. 326; Mock v. Walker, 42 Ala. 668.

3. Deducting the time elapsing after the maturity of the note, and prior to the commencement of this suit, between the 11th day of January, 1861, and September 21sb, 1865, six years had not intervened ; and, of consequence, the statute of limitations had not perfected a bar. The court did not err in the charge given, or the refusal to charge as requested by appellant. The judgment is affirmed.