Reynolds v. Bell

3 Ala. 57 | Ala. | 1841

GOLDTHWAITE, J

—1. The conclusion to which we have arrived, renders it uncessary to examine, in this case, into-the sufficiency of either the bond or affidavit.

A motion to quash or to set aside proceedings, in the nature of process, is always addressed to the discretion of the Court, and may be acted on or declined at pleasure, and we are not aware that it has ever been held error to refuse to entertain the motion. It is true, when the judgment of a Court has been had in this summary mode, we have uniformly held that its correctness might be examined on error. Planters and Merchants Bank v. Andrews, 8 Porter, 404. But we do not consider it to be so when the Court merely refuses to entertain the motion.— There may be many reason which might influence a Court to refuse 'to quash, and we app-rehend it is always competent to put the party to his plea or demurrer.

The third section of the act of 1833, which yet remains in force, seems to indicate that the omission of the bond or affidavit must be taken advantage of in this way; and a defective bond or affidavit, can of course, be reached in the same manner-

We are satisfied that we cannot review the decision of an inferior Court, on a motion refusing to quash process, when the same matter could be more regularly presented by plea in abatement.

2. The plea in abatement which was filed subsequently to the refusal to quash, does not bring to our view any defects in the bond or affidavit; it merely asserts that a variance exists between the declaration and the previous proceedings. We think it very clear that it was unnecessary to carry the recitals of the bond and affidavit into the declaration, because they have no connexion with the cause of action.

If, however, it- was- intended by this plea to assert that the attachment was sued out in the name of Brewer, and that he should have declared insfllhd of Bell, the plea cannot be sustained; because 'all the proceedings sufficiently show, that the former acted as the mere agent of the latter, in whose name all the proceedings are intitled. The Circuit Court, therefore, very properly sustained the demurrer to the pleas.'

There is no error in the record, and the judgment is affirmed.