Rosenberg v. H.B. Claflin Co.
| Decision Date | 03 February 1892 |
| Court | Alabama Supreme Court |
| Parties | F. S. & H. ROSENBERG v. H. B. CLAFLIN CO. |
Appeal from circuit court, Dallas county; JOHN MOORE, Judge.
Action by the H. B. Claflin Company against F. S. & H. Rosenberg in the nature of attachment proceedings. From a judgment for plaintiff, defendant appeals. Affirmed.
This action was commenced by attachment. Defendant filed 13 pleas the tenth and eleventh of which are not found in the record. The second and third pleas alleged that the plaintiff was a foreign corporation, and had not complied with the constitutional and statutory provisions which authorized it to do business in this state. The original affidavit upon which the attachment was issued did not describe the plaintiff as a corporation, but, by permission of the court the plaintiff amended this affidavit, as well as its complaint, by describing the plaintiff as a body corporate. The defendant moved to dissolve and dismiss the attachment and dismiss the levy, on the ground that the original and amended affidavit made a new cause of action, and because no notice of the levy of the attachment sued out by H. B Claflin Company, a body corporate, had been served on the defendant. The court overruled these motions. On motion of the plaintiff, the court ordered the defendant's pleas numbered 1, 4, 5, 6, 8, and 9 to be stricken from the file, and the court sustained the plaintiff's demurrer to plea No. 13.
Gaston A. Robbins, for appellant.
Dawson & Pitts, for appellee.
1. The record fails to show that any action was taken by the circuit court on the motion of the defendant to require the plaintiff to give security for the costs. As it does not appear that the motion was insisted on, or even called to the attention of the court, the presumption on appeal is that it was abandoned or waived. Hutcheson v. Powell, (Ala.) 9 South. Rep. 170; Covington Co. v. Kinney, 45 Ala. 176; Dougherty v. Colquitt, 2 Ala. 337.
2. A suit commenced by attachment is triable at the return term of the writ, if the levy has been made and notice thereof given 20 days before the commencement of such term. Code, § 2995. If the notice of the levy has not then been given, and the defendant does not appear, the case cannot be tried at that term; but it may be continued, and notice of the levy may be given thereafter. No reason is perceived why the mere failure of the officer to serve the notice at the proper time should confer on the defendant the right to have the attachment dismissed. However that may be, it is plain that nothing remains to be accomplished by a service of the notice, if the defendant voluntarily appears and pleads to the complaint. The purpose of the notice is to afford the defendant the opportunity to appear and make defense. A general appearance dispenses with the necessity of a formal notice, and is a waiver of any previous irregularity in the service of process. Lampley v. Beaveis, 25 Ala. 534; Moore v. Easley, 18 Ala. 619; Peebles v. Weir, 60 Ala. 413.
The appearance of the defendant in this case was not limited to the purpose of the motion to quash the levy and to dissolve and dismiss the attachment. It recognized the case as in court by filing a number of pleas, several of which involved a recognition of the service of the writ of attachment, and by going to trial, without objection, so far as the record discloses. All objections because of the failure of the officer to serve written notice of the levy were waived by this general appearance. If the defendant in attachment appears and pleads, the cause proceeds as in suits commenced by summons and complaint. Code, § 2996. In claiming that the motion to quash the levy and to dissolve and dismiss the attachment should have been granted because of the failure to serve written notice of the levy, the appellant urges an objection which has been removed by themselves.
3. The original affidavit for the attachment correctly stated the name of the plaintiff, but did not describe it either as a partnership or as a corporation. The plaintiff was...
To continue reading
Request your trial
-
Liverpool & London & Globe Ins. Co. v. McCree
...656, 20 So. 506. These cases were subject to the rule requiring of counsel an abstract of the record. In the case of Rosenberg v. Claflin Co., 95 Ala. 249, 10 So. 521, the ruling, it was declared, if error, was without Collins v. A. G. S. R. Co., 104 Ala. 390, 16 So. 140; Jones' Adm'r v. A.......
-
Ex parte Tucker
... ... Merchants', etc., Bank v. Troy Grocery Co., 150 ... Ala. 128, 43 So. 208; Rosenberg v. Claflin Co., 95 ... Ala. 249, 10 So. 521; Lampley v. Beavers, 25 Ala ... 534), it does not ... ...
-
Smith v. Alvord
...237; Banker's Life v. Robins, 59 Neb. 170; Bank v. Bank, 45 Neb. 29; 2 Elliott's General Practice, par. 474 and citations; Rosenberg v. Clofin & Company, 10 So. 521; v. Mrotek, 45 N.W. 118.) FRICK, J. McCARTY, C. J., and STRAUP, J., concur. OPINION FRICK, J. This action is one in equity in ......
-
Carter v. O'Bryan
... ... which would have rendered it void. Rosenberg v. H. B ... Claflin Co., 95 Ala. 252, 10 So. 521; Birmingham ... Flooring Mills v. Wilder, 85 ... ...