Appeal
from circuit court, Cullman county; H. C. Speake, Judge.
Action
by F. H. Kinney against J. K. Ragsdale to recover for rent
and advances. There was a judgment for plaintiff, and
defendant appeals. Reversed.
The
suit was commenced by an attachment. The affidavit which was
made as preliminary to the issuance of the attachment was in
words and figures as follows: "Before me, Chas. Grafton
clerk circuit court in and for said county, personally
appeared F. H. Kinney, who, being duly sworn, doth depose and
say that he is the landlord of J. K. Ragsdale, and that the
said J. K. Ragsdale is his tenant of what is known as the
'Barnett Place,' in Cullman county, Alabama, and that
the said J. K. Ragsdale is justly indebted to the said F. H
Kinney, for rent and advances, in the sum of one hundred and
ninety-three dollars, and that the said J. K. Ragsdale has
removed from said premises, or otherwise disposed of, a part
of said crops, without first paying the rent and advances
and without the consent of F. H. Kinney, his landlord; and
this attachment is not sued out for the purpose of vexing or
harassing the said defendant. [Signed] F. H. Kinney."
The
complaint which was subsequently filed contained seven
counts. The first, second, and third counts were as follows
"(1) The plaintiff claims of the defendant the sum of
two hundred and forty-one and 7/100 dollars, due from him for
rent and advances as follows: The sum of fifty-nine and
50/100 dollars due from him as rent for the year 1894, due on
the 25th day of December, 1894, and the sum of one hundred
and eighty-one and 50/100 dollars, due as and for advances
made by plaintiff to defendant as his tenant for the year
1894 on the 25th day of December, 1894, in money, and other
things of value, for the sustenance and well-being of said
defendant or his family, for preparing the ground for
cultivation, gathering, saving, handling, or preparing the
said crop for market for the said year, with interest on both
of said sums from the 25th day of December, 1894. Plaintiff
avers that the said defendant was at the time the advances
were made, and during the said year 1894, the tenant of the
said plaintiff of a tract of land owned by him in Cullman
county, Alabama, known as the 'Barnett Place,' and
plaintiff avers that said defendant cultivated the said
rented lands for the year 1894, and was to pay as rent
one-half of the bale cotton and one-third of some 2,200
pounds of seed cotton, and avers that he raised thereon more
than four bales of cotton and 2,200 pounds of seed cotton
the one-half value of baled and one-third value of seed
cotton being reasonably worth the said sum of fifty-nine and
50/100 dollars, which is due and unpaid. (2) The plaintiff
claims of the defendant the further sum of fifty-nine and
50/100 as rent for the year 1894 of the Barnett place, being
the balance due as rent for the said year on the 25th day of
December, 1894, which is due and unpaid, with interest
thereon. Plaintiff avers that said defendant rented the said
land for the said year 1894, and agreed to pay him therefor
one-half of cotton in bales and one-third of cotton in seed,
and other rents; and that there is still due and unpaid as
rent one-half of four bales of cotton and one-third of 2,200
pounds of seed cotton, which is reasonably worth the said sum
of fifty-nine and 50/100 dollars. (3) Plaintiff claims of the
defendant the further sum of one hundred and eighty-one and
57/100 dollars as and for advances made by plaintiff to
defendant as his tenant, in money and other things of value,
for the sustenance and well-being of said defendant and his
family, for preparing the ground for cultivation, gathering,
saving, handling, or preparing the said crops for market for
the year 1894, and which is unpaid. Plaintiff avers that said
defendant was at the time the advances were made, and during
the year 1894, the tenant of said plaintiff of lands owned by
him in Cullman county, Alabama, known as the 'Barnett
Place,' and that he cultivated the said lands during the
said year 1894." The fourth, fifth, and seventh counts
of the complaint were the common counts for different amounts
due by the defendant to the plaintiff by account. The sixth
count was for the gross amount sued for as due from the
defendant for goods, wares, and merchandise sold by the
plaintiff to him.
The
defendant filed a plea in abatement, averring that the
plaintiff should not further prosecute his suit, upon the
following grounds: "(1) Because said attachment
affidavit does not set out clearly and distinctly the
relation of landlord and tenant for the current year 1894.
(2) Because said affidavit sets up no statutory grounds for
the suing out of said attachment. (3) Because said affidavit
does not set up or show a debt due for rent in a sum certain
for the current year. (4) Because said affidavit is too
indefinite, in that it does not show when the debt or demand
for rent and advances accrued. (5) Because said affidavit
does not set out or show what part of the debt or demand
claimed therein is for rent, and what part is for advances.
(6) Because said affidavit does not show, after demand made,
a refusal to pay the debt or demand set up in said affidavit,
or that said debt or demand set out therein is due, or that
demand was made for the payment of rent. (7) Because said
affidavit does not set out the articles advanced, or property
purchased with money advanced, or obtained by barter in
exchange for articles advanced. (8) Because said affidavit
does not set out a sum certain due for rent made to the
defendant for the sustenance or well-being of the tenant or
his family, or preparing the ground for cultivation, or fur
cultivating, gathering, handling, saving, or preparing the
crop for market. (9) Because said affidavit does not set out
each article advanced, and the value of the same, and because
it fails to show for what purpose said advances were
made." To this plea in abatement the plaintiff demurred
upon the following grounds: "(1) Because the affidavit
for the attachment is full and sufficient, and (2) because it
is not required that there should be set out in said
affidavit a sum certain." This demurrer was sustained,
and the defendant duly excepted. The defendant thereupon
moved the court to discharge and vacate the levy of the writ
of attachment in so far as it seeks to enforce the lien of
the landlord for advances. This motion was made upon the
following grounds: "(1) Because the attachment affidavit
upon which the attachment was issued is insufficient in law
to support a claim for advances, and to authorize the
issuance of an attachment for advances. (2) Because the said
affidavit does not set out or show that the advances claimed
therein to have been made were made for statutory purposes.
(3) Because said affidavit does not state or show the
advances alleged to have been made therein were made for the
sustenance or well-being of the tenant or his family, or for
preparing the ground for cultivation, or for cultivating,
gathering, saving, handling, or preparing the crop for
market. (4) Because it is not shown by the said affidavit
that it is sought to enforce the statutory lien on the
articles advanced or obtained by barter in exchange for
articles advanced for the aggregate price and value of such
articles and property advanced. (5) Because it is not shown
therein what amount is claimed for advances, or of what said
advances consist." The court overruled this motion, and
the defendant duly excepted. The defendant thereupon moved to
strike out the portion of the complaint which sought to
recover for advances made by the plaintiff to the defendant.
This motion was made upon the following grounds: "(1)
Because the affidavit for attachment in this cause, and upon
which the said attachment was issued, is insufficient in law
to support a claim for advances. (2) Because it is not shown
therein that the advances made to the defendant were made for
statutory purposes." The court overruled this motion,
and the defendant duly excepted. Thereupon the defendant
filed a plea in abatement to the action and complaint, upon
the following grounds: "(1) There is a variance between
the amount claimed in the affidavit and the amount claimed in
the complaint, in this: the plaintiff claims the sum of one
hundred and ninety-three dollars due for rent and advances in
the affidavit, and in the said complaint he claims the sum of
two hundred and forty-one and 7/100 dollars. (2) Because of a
misjoinder of counts in the complaint, in this: the plaintiff
seeks to join the counts claiming a debt due for rent with
counts on accounts under the common counts, which cannot be
done in this action. (3) Because the plaintiff seeks to
recover for advances in this action, and the affidavit upon
which the attachment was issued is insufficient in law to
support a claim for advances." This plea, on the motion
of the plaintiff, was stricken from the file, and to this
motion the defendant duly excepted.
The
plaintiff, by leave of the court, filed an amended affidavit
of attachment, which was in words and figures as follows
"Before me, Chas. Grafton, clerk of the said circuit
court, personally appeared F. H. Kinney, who, being duly
sworn, deposes and says that J. K. Ragsdale is justly
indebted to him in the sum of two hundred and forty-one and
7/100 dollars, which said amount is justly due, after
allowing all just offsets and discounts, for rent and
advances as follows: That the sum of fifty-nine and 50/100
dollars was due from said Ragsdale for rent of the Barnett
place, in Cullman county, Ala., for the year 1894, and due
not later than the 25th day of Dec., 1894. That said Ragsdale
rented the said...
