Hawkins v. Armour Packing Co.

• Decision Date: 04 February 1895
• Citation: 17 So. 16,105 Ala. 545
• Parties: HAWKINS v. ARMOUR PACKING CO.
• Court: Alabama Supreme Court

17 So. 16

105 Ala. 545

HAWKINS v. ARMOUR PACKING CO.

Supreme Court of Alabama

February 4, 1895

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by James E. Hawkins, administrator, against the Armour Packing Company, a partnership. From a judgment dismissing the action, and taxing costs to plaintiff, he appeals. Reversed.

Bowman & Harsh, for appellant.

Hewitt Walker & Porter, for appellees.

HEAD J.

The plaintiff, Hawkins, administrator, sued out attachment against defendants, a partnership, doing business in the name of Armour Packing Company, on the 15th day of April, 1892. On the same day the sheriff of Jefferson county levied it on certain personal property of defendants, and, though the attachment was sued out on the ground that defendants were nonresidents of this state, the return shows that they were found in Jefferson county, and written notice of the levy was given them by the sheriff, in which notice they were required to appear and plead or demur to the complaint filed in the cause within 30 days thereafter. On the same day they replevied the property levied on, giving the usual bond reciting the issuance of the attachment, the levy, the delivery of the property to them upon the execution of the bond, and their obligation to deliver it to the sheriff within 30 days after judgment against them in the suit. The bond was returned to court with the other papers, as required by the statute. Code, § 2964. Three days later the plaintiff filed his complaint in the cause. The defendants took no further steps in the cause until April 3, 1893, when their attorneys entered a general appearance. Seven days thereafter these attorneys filed a plea in abatement, on account of an alleged variance between the affidavit, bond and attachment, and the complaint; and when the cause came on for trial, on June 15 1893, on motion of plaintiff, the court struck said plea from the file on the ground, among others stated in the motion that it was filed too late. Thereupon the defendants filed demurrers to the complaint and pleas in bar, and the parties entered upon a trial of the cause. The court overruled the demurrers, and a mistrial was had, upon issue joined upon the pleas, and the cause continued until the next term. During the next term, viz. on October 11, 1893, after another trial had been entered upon, and a witness examined, the court granted the defendants leave to withdraw their demurrers and pleas in bar, and to refile their said plea in abatement, which were done; whereupon the plaintiff reinterposed his motion to strike the said plea from the file. The court overruled the motion, and, the plaintiff declining to take issue of law or fact upon the plea in abatement, the court rendered judgment dismissing the cause, and taxing plaintiff...