95 Ala. 249 | Ala. | 1891
1. The record fails to show that any action was taken by the Circuit Court on the motion of the defendants to require the plaintiff to give security for the costs. As it does not appear that the motion was insisted on, or even called to the attention of the court, the presumption on appeal is that it was abandoned or waived. Hutcheson v. Powell, 92 Ala. 619; Covington County v. Kinney, 45 Ala. 176; Dougherty v. Colquitt, 2 Ala. 337.
2. A suit commenced by attachment is triable' at the return term of the writ, if the levy has been made and notice
3. The original affidavit for the attachment correctly stated the name of the plaintiff, but did not describe it either as a partnership or as a corporation. The plaintiff was permitted to file an amended affidavit, in which its corporate character is duly stated. It has been held that the absence of an allegation of the plaintiff’s corporate capacity, in an original complaint filed by a corporation, could not be regarded as a failure to name any plaintiff at all, and that an amendment of the complaint by stating the plaintiff’s corporate character should be allowed. — Southern Life Ins. Co. v. Roberts, 60 Ala. 431; Alabama Conference v. Price, 42 Ala. 47. Such an amendment is a mere correction of the description of a plaintiff, already named; it does not amount to a departure from the original complaint, to the institu
4. The first plea was a denial that the plaintiff is a corporation authorized to maintain this suit. This plea Avas insufficient, because it was not sworn to. It presented an issue as to the existence of the plaintiff as a corporation. The plaintiff can not be required to prove its corporate existence, unless the same is denied by a plea verified by affidavit. — Acts of Ala. 1888-9, p. 57.
5-7. No demurrer to the thirteenth plea is found in the record. As there is nothing to show what were the grounds of the demurrer, we are unable to review the ruling of the court in sustaining it. However erroneous that ruling may have been, it involved no injury to the appellants. The plea amounted only to the general issue. — Louisville. & Nashville R. R. Co. v. Trammell, 93 Ala. 350. The twelfth plea amounted to the same thing. Under this plea, the defendant had the full benfit of all matter of defense that would have been available to it under the thirteenth plea. Sustaining the demurrer to the latter plea was, for this reason, error without injury, if error at all. — Manning v. Maroney, 87 Ala. 563.
We have discovered no error in the record, and the judgment of the Circuit Court must be affirmed.