Ellison v. Mounts

12 Ala. 472 | Ala. | 1847

COLLIER, C. J.

The refusal to quash an attachment, is not revisable on error. Instead of entertaining the motion, even where the suggestion upon which it is made is well founded, the primary court may put the defendant to a plea in abatement. A defect in the bond, or the want of a bond, as well as the error pointed out in the writ itself, may be corrected by the substitution of a proper bond, find the amendment of the writ, so as to require the sheriff to whom it is addressed to attach the defendant’s estate, instead of commanding the plaintiff himself to perform this service. [Reynolds v. Bell, 3 Ala. Rep. 57; Massey v. Walker, 8 Id. 167; Johnson v. Wren, 3 Ala. Rep. 172; Lowry v. Stowe, 7 Por. Rep. 486; Alford v. Johnson, 9 Ibid. 320; Clay’s Dig. 54, § 3.]

In Cobb v. Miller, Ripley & Co. 9 Ala. Rep. 499, we say that it is indicated by several previous adjudications, that the twelfth rule for the regulation of the “ practice in the circuit and county courts,” which declares that “ no plea in abatement shall be received, if objected to, unless by the indorsement of the clerk, it appear to have been filed within the time allowed for pleading,” is not so imperative as to require a literal compliance with its terms. And it is strongly intimated that a defendant is not bound to plead in abatement of an attachment, until the plaintiff’s declaration was filed. But if it be conceded that it were competent for the defendant to show when the declaration was filed, and that his plea was tendered in due season thereafter, and that the rejection of such evidence was revisable, in the present case we think no error prejudicial to the defendant has resulted from the ruling of the county court. The plea which the defendant offered, prays that the attachment be quashed for two distinct causes. 1. Because it was issued without an affidavit having been made, such as the statute requires. 2. Because the writ of attachment (though properly addressed) commands the plaintiff eo nomine to attach the defendant’s estate.

In Cobb v. Force, Brothers & Co. 6 Ala. Rep. 468, it was determined that a plea which unites two distinct matters of abatement, is bad. This decision was re-affirmed in Cobb v. Miller, Ripley & Co. 9 Ala. Rep. 499. We have repeatedly held that pleas in abatement do not come within our statutes of amendment, and are not amendable according to the principles of the common law. As, then, the plea which the defendants filed was bad, and might have been stricken out on motion, or adjudged bad on demurrer, and could not have been amended, they are not prejudiced by the rejection of the evidence they offered to the court. It therefore follows, that the judgment of the county court must be affirmed.