VAN ASPEN vs. TOWNSEND

VAN ASPEN vs. TOWNSEND. [ACTION 0]? FORCIBLE ENTRY AND DETAINER.] 1. Variance between summons and complaint. — In an action of forcible entry and detainer, or unlawful detainer, removed by appeal from a justice’s eourtinto the circuit court, (Codo, §2864,) the cause being triable de novo, the complaint should not be rejected, on account of a variance between it and the cause of action endorsed on the summons issued by the justice. Appeal from the City Court of Mobile. Tried before the Hon. Alex. McKinstry. This action was brought by the appellant, and was commenced in a justice’s court. The cause of action endorsed on the justice’s summons was, “Unlawful entry and detainer;” while the complaint was for a forcible entry and detainer. After the removal of the cause to the city court, by appeal, the defendant moved to strike the complaint from the files, because of the variance between it and the endorsement of the summons; and the court sustained the motion. This ruling of the court, to which the plaintiff excepted, is now assigned as error. R. B. Armisíead, for appellant. OveRall & Moultost, contra. [MAJORITY — STONE, J.] STONE, J. We think the city court erred in rejecting the complaint, because of a variance between it and the justice’s endorsement on the summons of the cause of action. Proceedings such as this are triable anew, without regard to any defect in the proceedings before the justice. — Code, §2864. Reversed and remanded.