Perkerson v. Snodgrass

• Decision Date: 11 May 1888
• Citation: Perkerson v. Snodgrass, 85 Ala. 137, 4 So. 752 (Ala. 1888)
• Parties: PERKERSON v. SNODGRASS.
• Court: Alabama Supreme Court

4 So. 752

85 Ala. 137

PERKERSON v. SNODGRASS.

Supreme Court of Alabama

May 11, 1888

Appeal from circuit court, Jackson county; JOHN B. TALLY, Judge.

This was an attachment action brought by the appellee, Nat. H Snodgrass, against the appellant, James E. Perkerson, and was founded on a note given by the defendant to the plaintiff for the rent of a certain tract of land for the year 1885.The said note was given March 2, 1885, and was made payable November 1, 1885.The land rented to defendant was land which formerly belonged to him, which was sold under power contained in a deed of trust, and purchased by the plaintiff.On the day of the purchase, March 2, 1885, the plaintiff rented it to the defendant, and took the note which is the foundation of this suit.On November 3, 1885, the defendant redeemed the property from the plaintiff.There was verdict and judgment for the plaintiff, and the defendant appealed.

W L. Martin, for appellant.

J E. Brown, for appellee.

CLOPTON J.

The defendant moved to dissolve the attachment, on the ground that the complaint was not filed within the time prescribed by the statute, which provides: "The plaintiff must, within the first three days of the return-term of the attachment, file his complaint, and the cause stands for trial at such return-term, if the levy is made, and notice thereof is given, twenty days before the commencement of such term."Code 1886, § 2995.The writ of attachment was sued out November 9, 1885, returnable to the succeeding term of the circuit court, and the complaint was filed August 17, 1887.In construing the statute, we should consider the construction which has been placed upon similar statutes relating to the same subject-matter, before its adoption.In Sallyv.Gooden, 5 Ala. 78, speaking in reference to the statute of 1839,-"to abolish attorney's fees in certain cases,"-it is said: "The language of the second section, which declares the defendant's right to make defense forfeited, when he has omitted to plead to the merits within the first week of the appearance term, is express, and, if literally interpreted, is decisive of the case at bar.But the subject-matter of the statute, the pre-existing laws, and rules of court regulating the practice in this respect, all seem to us to require such a construction to be given to the act as will not divest the court of all discretion as to the time of pleading."A rule of practice which declared that "no plea in abatement shall be received, if objected to. unless by the indorsement of the clerk it appears to have been filed within the time allowed for pleading," was construed not to be so imperative as to require a literal compliance with its terms; and that the court may, for good cause, permit a plea of abatement to be filed, although the first term may have passed.Cobbv.Miller, 9 Ala. 499;Masseyv.Steele, 11 Ala. 340.Also the statute, which provides that a plea to an indictment, on the ground that the grand jurors were not drawn in the presence of the officers designated by law, must be filed at the term at which the indictment is found, was held not to prohibit, peremptorily and absolutely, the filing of the plea at a subsequent term.Russellv.State, 33 Ala. 366;Harringtonv.State, 83 Ala. 9, 3 South. Rep. 425.Statutes, in respect to the time in which pleas shall be filed, have been uniformly construed as directory.We must presume that it was intended that the same construction should be placed on the section of the Code in regard to the time the complaint must be filed in a suit commenced by attachment.

The defendant pleaded in abatement a variance between the affidavit for the attachment and the complaint, which variance is alleged in the plea as follows: "Said affidavit alleges that the defendant is indebted to the plaintiff in the sum of two hundred and fifty dollars for rent of land due November 1, 1885, for which the attachment was sued out against the crop of defendant, and levied upon the same, and said complaint claims the sum of two hundred and fifty dollars, due by bond executed by defendant, payable to plaintiff on 1st day of November, 1885."The plea does not aver that the bond is a different contract from that set forth in the affidavit.The affidavit and complaint set forth a cause of action corresponding in amount and in the time when payable.From the affidavit and complaint alone there does not appear to be such variance as would authorize the court to quash the attachment.Morrisonv.Taylor, 21 Ala. 779;Smithv.Wiley, 19 Ala. 216.It is not essential to allege in the complaint, in terms, that the cause of action set forth therein is identical with the cause of action mentioned in the affidavit, but a departure should not appear by a comparison of the affidavit and complaint.

The defendant set up, in bar of the action, that about March 2 1885, the land rented was sold under a power contained in a deed of trust executed by him to E. H. Caldwell, at which sale the plaintiff was the purchaser, and received a conveyance from the trustee.After the sale, the defendant, in order to preserve the statutory right of redemption, rented the premises from the plaintiff, and gave the bond sued on for the rent; and that on November 3, 1885, defendant redeemed the land, and plaintiff executed...