Engram v. Thoma, 4 Div. 156.

4 Div. 156. | Ala. | Oct 16, 1924

Acts 1919, p. 1084, was evidently intended to extend the present landlord's lien for rent of farm or agricultural lands to stock raised or grazed on the land when the same has been rented for grazing purposes only. The grounds given for an attachment thereunder do not include the one that the defendant is a "nonresident" and as said act requires an attachment bond this plaintiff was not relieved from giving one under section 2928 of the Code of 1907. This provision relieves from giving the bond only when the attachment is sued out upon the ground that the defendant is a nonresident.

The act requires the giving of a bond as a condition to the issuance of the attachment and if it stood alone, an attachment without a bond would no doubt be void. Indeed, we fully agree with the quotation in the appellee's brief from section 115 of Drake on Attachments as follows:

"Where the statute requires a bond to be given before the attachment issues, a failure to give it is fatal to the suit unless the law specially authorizes the defect to be cured."

We think that section 2965 of the Code of 1907 specially authorizes the giving of a bond when one was wanting at the outset and forbids dismissing the attachment for want of a bond if the plaintiff, his agent, or attorney is willing to give one. This section is broad in its terms and was evidently intended to apply to the trial of all attachment cases and is prospective in its operation. It is true that section 4751 of the Code of 1907, in the article dealing with the landlord's lien for rent of store houses and other buildings makes the general attachment law as to the trial and process applicable thereto but this was evidently an act of caution and was not intended to exclude the general law as to trials from operating upon other attachment suits. Moreover, section 4741 of the Code of 1907 provides that attachment suits in cases for the rent of farm land shall be tried in the same manner as other attachment causes are tried and section 2965 forbids the trial court from dismissing the attachment for want of a bond if the plaintiff is willing to give one. The Legislature in adopting the present act contemplated that all attachments issued thereunder and causes tried would be governed and controlled by the existing general law relating to the trial of attachment causes. This holding is not only no innovation upon the legislative domains but to hold otherwise would seriously reflect upon legislative intelligence.

The case of Ala. Tenn. R. R. Co. v. Harris, 25 Ala. 232" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/alabama--tennessee-river-railroad-v-harris-6505362?utm_source=webapp" opinion_id="6505362">25 Ala. 232, involved an entirely different statute from the one in hand. There the statute required the dismissal of the cause unless the security for cost was lodged with the clerk before the commencement of the action. The statute applicable to this case, section 2965, forbids the dismissal of the attachment for want of a bond if the plaintiff is willing to give a sufficient one before or during the trial.

The trial court erred in overruling plaintiff's motion to give a bond and in dismissing the cause, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

SAYRE, GARDNER, and MILLER, JJ., concur.