Writ of error to the Circuit Court of Tuscaloosa county. ACTION of debt. Plea in abatement of the action, because a copy of the writ was not served on the defendant as required by law, in this, that the paper purporting to be such copy, required the defendant to appear on the first Monday in February* 1839. Demurrer and judgment thereon, in favor of the defendant.
Good law ✅— No negative treatment on recordhow we know
Decided 1840-06-15
How this case has been cited
Cited by 5 later decisions — most recently December 1916
5 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1-1. The officer serving the writ, is directed by the statute to leave a copy with the defendant^ at the *434time of service, (Aik. Dig. 278, § 112;) but this provision was not intended to confer a right on the defendant to avoid the process, if the copy was not served. It was, in our opinion, to relieve the plaintiff from the necessity of serving a copy of the declaration. We are not aware that it has ever been held, either in England or in these States, where this practice yet obtains, that a mistake in the declaration would render the service of the writ nugatory. If injustice has been done, or an attempt is made to use the process to the injury of a suitor, it is clearly within the power, as it might be the duty, of a court, to interfere and set aside irregular process.
¶2The plea in this case, however, assumes that the law gives to the defendant a right to the service of a copy of the writ, without which, the service is nugatory and voidable. If this is so, an exact copy can be required, for it is impossible to define any limits to the right, which are not prescribed by the statute: but if the old practice of serving a copy of the declaration was alone intended tó be abrogated by this enactment, and a more convenient practice substituted, then it is very clear, that no right was conferred on the defendant, but the practice substituted must be governed by rules, similar to those which obtained previous to its alteration,
¶32. We are of opinion, that no irregularity in the copy of a writ, can be pleaded in abatement, and that the only mode by which advantage can be claimed, is by a motion to set aside the service for irregularity, which can be granted in the exercise of a sound discretion, if it is necessary to prevent an injury to the defendant, or to advance the justice of the cause.
¶4The Circuit Court having erred in sustaining the plea in abatement, its judgment is reversed, and the cause remanded, with instructions to sustain the demurrer.
