45 Ala. 286 | Ala. | 1871
This was an action of debt commenced in the circuit court by proceedings under the Code. This system of pleading and practice requires the complaint to accompany the summons. The complaint in this instance is in proper form. But the summons is in these words :
“ The State of Alabama, ) Lowndes county. f
To any sheriff of the State of Alabama — Greeting: You are hereby commanded to summon Montgomery S. Relfe*290 to appear at the next term of the circuit court of Montgomery, to be held for said county, at the place of holding the same, then and there to answer the complaint of David Yalentine & Co., a firm composed of David Yalentine, Frederick A. Macy, and Charles C. Keeler. Witness my hand, this 18th day of March, one thousand eight hundred and sixty-eight. John A. Robertson, Clerk.”
This is the form of the process given in the Code, except the words “ of Montgomery,” in the body of the writ. This form states the venue and place cf holding the court, in the margin of the summons. It is not required to be otherwise shown. This, then, must be regarded as the governing allegation as to the venue and place of holding the court, when there appears to be another place stated in the face of the summons which seems to conflict with this. If the summons and complaint, as is the case here, are right in the allegation in the margin, it is sufficient to support a judgment by default. The words “ of Montgomery,” in the writ, are mere surplusage. Their insertion is a mere irregularity, and they may be stricken out without injury to the force of the precept. This is such a defect as could have been amended in the court below, and it is cured by our statute of amendments.' — Revised Code, §§ 2558, 2559, 2636, 2808, 2811; Blount v. McNeill 29 Ala. 473 ; Ala. Conference M. E. Church South v. Price, Ex’r, 42 Ala. 39.
The judgment of the circuit court is therefore affirmed.