Fiquette v. Sanders

Fiquette v. Sanders. Libel and, Slander. (Decided April 24, 1913. 62 South. 325.) 1. Pleading; Waiver of Objection. — If there was error in denying a motion to quash the summons and to set aside the service because not signed by plaintiff or his attorney as required by section 5297, Code 1907, it was cured by an amendment of the defect and by defendant taking issue thereon. 2. Charge of Court; Directing Verdict. — Where there was evidence tending to support the complaint, the verdict could not be properly directed for defendant. Appeal from Chilton Circuit Court. Heard before Hon. W. W. Pearson. Action by Lulu Dennis Sanders against W. J. Fiquette, for damages for libel and slander. Judgment for plaintiff and defendant appeals. Affirmed. The charges referred- to in the opinion as being requested were affirmative charges not to find for plaintiff if the jury believed the evidence. Middleton & Reynolds, for appellant. The court erred in overruling motion to quash summons and set aside service as tbe complaint was not signed by plaintiff or lier attorney. — S'ec. 5297, Code 1907; Browder v. Q-aston, 30 Ala. 677. On the evidence defendant was entitled to the affirmative charge. Thomas A. Curry, for appellee. No brief reached the Reporter. [MAJORITY — WALKER, P. J.] WALKER, P. J. — Whether or not the defendant’s motion to quash the summons in the cause and to set aside the service because of the complaint not having been signed by the plaintiff or her attorney (Code, § 5297) was well taken, all ground of objection on this score was removed by the plaintiff’s amending her complaint by having it signed by her attorney and by the defendant’s taking issue on the complaint. If the court erred in its disposition of the motion, the error was cured by the subsequent proceedings. There was evidence tending to support the averments of the complaint, as it was amended after the conclusion’of the evidence, and the court properly refused to give the written charges requested by the defendant. Affirmed.