Richards v. Bestor

• Decision Date: 29 May 1890
• Parties: RICHARDS ET AL. v. BESTOR.
• Court: Alabama Supreme Court

8 So. 30

90 Ala. 352

RICHARDS ET AL. v. BESTOR.

Supreme Court of Alabama

May 29, 1890

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

Attachment to enforce a landlord's lien. Defendants filed a plea in abatement, on the ground of variance between the description of the rented premises in the lease and in the affidavit. A demurrer to this plea was sustained, the case proceeded to trial, and plaintiff obtained judgment. Defendants appeal.

Tipton Bradford, for appellants.

Ward & John, for appellee.

CLOPTON J.

This suit was commenced by attachment sued out under sections 3069-3073 of the Code, to enforce a landlord's lien for the rent of a store-house. A portion of the goods levied on having been claimed by a third person, defendants objected to proceeding with the trial until the question of the right of property was settled. Goods had been levied on to which no claim had been interposed. The statute declares: "No judgment can be rendered against the defendant in attachment when a claim has been interposed to try the right of property until that question is settled, unless other property or effects of the defendant be attached or garnished, about which no contest has arisen." The court did not err in requiring defendant to proceed with the trial. Code, § 3000. Plaintiff was permitted, against the objection of defendant to amend the affidavit on which the attachment was obtained in matter of substance. Section 2998, which relates to attachment suits in general, provides. "The attachment law must be liberally construed to advance the manifest intent of the law, and the plaintiff, before or during the trial, must be permitted to amend any defect of form or substance in the affidavit, bond, or attachment." And section 3073 declares: "The law governing the issue, levy, trial, and other proceedings in attachment suits in general, not inconsistent with the provisions of this article, shall govern in all cases arising under this article." The right of the plaintiff to amend the affidavit is manifest from a comparison of these sections. The demurrer to the plea in abatement was properly sustained, for the reason that the affidavit, as amended, substantially conformed to the statutory requirements, and for the further reason that defendants did not crave oyer of the affidavit and writ of attachment, and set them out in the plea. Tommey v. Gamble, 66 Ala. 469.

The objection of defendants to the...