Ex parte Martin

• Decision Date: 31 March 1982
• Parties: Ex parte William M. MARTIN. (Re EAST BAY APARTMENTS v. William M. MARTIN). Civ. 3160.
• Court: Alabama Court of Civil Appeals

Page 815

412 So.2d 815

Ex parte William M. MARTIN (Re EAST BAY APARTMENTS v. William M. MARTIN).

Civ. 3160.

Court of Civil Appeals of Alabama.

March 31, 1982.

W. Kenneth Gibson of Taylor, Benton & Gibson, Fairhope, for appellant.

George Huddleston, III, Fairhope, for appellee.

BRADLEY, Judge.

Relief from this court is requested by an original petition for writ of mandamus. Petitioner is a former radio announcer known as William (Billy) Martin, residing in an apartment unit of East Bay Apartments, a complex located in Baldwin County. On January 13, 1982 respondent, East Bay Apartments, filed an action seeking damages for breach of a lease agreement against petitioner in the District Court of Baldwin County. It was alleged that Martin had defaulted in making rent payments under his lease for a period of three months, and had failed to pay late charges as required by the lease. The damages requested amounted to $2,280.00. Along with its complaint, respondent filed a petition for a writ of attachment and an accompanying affidavit of the resident manager of the apartment complex. The affidavit alleges that petitioner is in default for three months' rent and applicable late charges, and that the affiant believes that petitioner "intends to move to Florida, outside the jurisdiction of the courts of Baldwin County, Alabama in the event collection procedures are commenced against him." The affidavit failed to contain a statement to the effect that the writ was not sued out solely "for the purpose of vexing or harassing the defendant," as required by § 35-9-62, Code 1975, the provision dealing with a landlord's lien on the tenant's possessions for rent due and owing.

The district court granted respondent's petition for a writ of attachment. On January 19 respondent filed an attachment bond in double the amount of the damages requested, and on January 20 a writ of seizure and attachment was issued. Petitioner was duly notified, and the sheriff seized an automobile and two queen-size beds belonging to petitioner.

Thereafter, on January 25, petitioner, pursuant to A.R.C.P. 64(b) and the notice contained in the attachment order of the district judge, filed a written request for a hearing on the dissolution of the writ and a motion to quash.

The hearing was held on January 27. At that time respondent filed an amendment to the original affidavit, containing averments that demand for the sums due had been made and refused, that petitioner had fraudulently disposed of certain items of his personal property, and that the writ was not sued out solely to vex or harass the defendant. The amended affidavit was accepted by the district judge over petitioner's objection. The record before us does not contain a copy of the district court order or the transcript of the proceedings, but it does contain enough information to permit us to determine that petitioner's motion to quash or dismiss the writ of attachment was denied.

On February 10 petitioner filed a petition for writ of mandamus in the circuit court, pursuant to that court's supervisory jurisdiction as contained in § 12-11-30, Code 1975. The petition was denied, and on February 17 petitioner renewed his petition in this court, pursuant to § 12-3-11, Code 1975.

Petitioner asserts four grounds for the issuance of a writ of mandamus directing the dismissal of the writ of attachment. He first alleges that the original affidavit filed by respondent in conjunction with the request for a writ of attachment was invalid for failure to allege that the writ was not sued out solely "to vex or harass the defendant," as required by § 6-6-44, Code 1975, the provision dealing with the general law of attachment. Petitioner argues that the requirement is a substantive one, and that such a defect in the affidavit is not amendable under the authority of Hall & Curry v. Brazelton, 46 Ala. 359 (1871). He further argues that a defective affidavit is equivalent to no affidavit at all, and that, pursuant to § 6-6-142, Code 1975, the writ is due to be dismissed.

We disagree with petitioner's contention. We would first point out that § 35-9-62, Code 1975, dealing with attachment as a means of enforcing a landlord's lien on property of the tenant, and § 6-6-44, Code 1975, the general law of attachment, ¹ both require that language to the effect that the writ of attachment is not sued out solely "to vex or harass the defendant" be contained in the affidavit. It is undisputed that the original affidavit did not contain the precise statutory language required for the proper issuance of the writ.

Although the original affidavit did not contain the required statutory language, the trial court permitted an amendment to the affidavit to include the required language. Both §§ 6-6-143 and 35-9-62 permit "the plaintiff, before or during the trial ... to amend any defect of form or of substance in the affidavit." Consequently the trial court properly permitted the amendment to the affidavit.

The cases relied on by petitioner involved a construction of the Code of 1867, which provided that a defect in substance of the affidavit in attachment proceedings could not be cured by amendment. § 2990, Code 1867. See Hall & Curry v. Brazelton, supra. As noted above, the legislature has changed the law. Thus there is no procedural defect in the issuance of the attachment writ.

Petitioner's next two allegations concern the actions of the district judge at the January 27 hearing. We would point out, however, that the underlying suit against pe...