56 Ala. 439 | Ala. | 1876
A fundamental error which underlies this case, and exerts a controlling influence in the determination of many of the questions presented, is a misapprehension of the relations subsisting between the parties. As the evidence discloses, they were tenants in common, not landlord and tenant. — Smyth v. Tankersly, 20 Ala. 212 ; Thompson v. Mawhinney, 17 Ala. 362.
, 2. But the question, whether the attachment was rightly sued out, was matter of abatement only, and could only be
3. It results from what we have said above, that no question could be considered in the court below, tried as the case was, on pleas to the merits of the action, which raised, or sought to raise, the issue of landlord and tenant, or the lien of the former for advances. Nor should the question of exemption have been brought up in the trial, or at that stage of the suit. The former had been waived, and the latter was premature. The pleas and motion which sought to raise these questions were foreign to the issue formed on the plea of non assumpsit, and they should have been entirely disregarded by the court.
The judgment entry in this cause contains much that should not have been adjudged. Under the pleadings, no question was properly before the court, which authorized the judgment that the property attached was subject to the debt, or that defendant could not claim it as exempt. All of the judgment entry is here vacated and annulled, except that part which sets forth the submission of the cause to the jury, the verdict rendered ascertaining the amount due, and the judgment of the court thereon, “ that the plaintiff recover of the defendant said sum of one hundred and one 55-100 dollars, the damages assessed by the jury, and the costs of suit, for which execution may issue,” &c.; and said judgment is here corrected and rendered accordingly.
Some rulings of the Circuit Court were not in accordance with the views above expressed; but they were immaterial, and did the defendant no injury. For such errors, we do not reverse.- — 1 Brick. Dig. 780, § 96.
4-5. So far as any supposed lien of the attachment is concerned, if the property replevied be restored to the sheriff, we are not prepared to say the defendant may not success^ fully interpose his claim of exemption, secured to residents
Judgment reversed, and here corrected, at costs of the appellee.