Cannon v. Logan

5 Port. 77 | Ala. | 1837

COLLIER, J.

The defendant in error, sued out an attachment before a justice of the peace of Sumter, returnable to the Circuit Court of that county. At the return term, the plaintiff moved the Court to quash the attachment, which motion being continued for several terms, was overruled.

Immediately following the rendition of the judgment, we find an entry in the record as follows:

“In this case, the defendant moves to strike out that part of the sheriff’s return on the attachment in this case, which shews a levy on 160 acres of land, as the land of the defendant; because the affidavit of the plaintiff' shews no sufficient grounds' for a levy of the attachment on the lands of the' defendant;” which motion was denied by the Court.-

No particular objection is pointed out to the attachment, in the motion to quash, nor has any been assigned in this Court. We have supposed, however, that it may haye been thought defective, because it alleges that the debtor, “absconds or secretes himself, &c.” and that it should charge, either the one or the other, positively. We are aware that this has been held to be fatal, whether rightfully or not, is now entirely immaterial.

The attachment law was revised in eighteen hundred and thirty-three, and all its various provisions embodied in one statute; the third section of which, enacts that “every judge or justice, before issuing an attachment, shall require the party, applying for the same, his agent or attorney or factor, to make affidavit in writing, that the person against whom the attachment is prayed, absconds or secretes him or herself; that he or she resides out of this State; that he or she is about to remove out of this State, so that the ordinary process of law cannot be served upon him or her; or that he of she is about to remove his or her property out of the State; and that thereby, the plaintiff will probably lose the debt, or have to sue for it in another State,” &c.

We are of opinion, that this act authorises an at-tachmeut to issue, when the debtor absconds or secretes himself, and that it cannot be objected to it, that it issues in the disjunctive — it was intended by the Legislature thus to give the remedy. It is often difficult, if not impracticable, for the creditor to ascertain whether his debtor absconds or secretes himself — he has to rely frequently upon such information as his family or friends will give him, which cannot always be confided in: hence, to allow sufficient latitude to the creditor in making his affidavit, and to prevent failures, from having mistaken the cause why the debtor is liable to the remedy, the law has very properly provided for its issuance in the alternative. That this construction is proper, is clearly indicated by the latter part of the act we have recited — every substantive ground for an attachment, follows the word that, as “that he or she, &c.” and seems to show that all the creditor is required to disclose in his affidavit, and nothing more, is thus'introduced.

The statute discloses several grounds for an attachment; and if any two of these were verified in the affidavit, or recited in the writ, the proceedings would be irregular. The affidavit and writ should disclose but one of the grounds on which the remedy is authorised, or it cannot be sustained.

In regard to the motion to strike from the levy, endorsed on the writ by the sheriff, so much of it as related to lands, we are of opinion, that, jf the levy thus far was unauthorised, yet in the refusal of the Court to allow the motion, there was no error. The record shows it to have been made after judgment — the judgment was upheld by the levy on the person;’!, estate, and could not have been affected by striking out ihe levy on lands — Again: the motion is one, from which neither injury or benefit could have resulted to any one. The debt- or, if his lands were not subject to the attachment, might have controlled them in the same manner, that he could have done, had no levy been made; for if it was- not warranted by the law, it gave no lien to the creditor.

Lastly — the writ of error is' sued out to reverse' the judgment; and even if there was error in refusing the motion of the plaintiff, it cannot now be noticed; because the motion and refusal were posterior to the rendition of the judgment.

The judgment of the Circuit Court is affirmed.-