74 Ala. 328 | Ala. | 1883
— -The present controversy originated in an attachment for rent, sued out by James L. Jackson, the appellant, through his agent, and against Thomas J. King. The, attachment writ was levied on part of the crop grown on the rented land. This suit was not defended by King, and there was judgment against him by default. The record shows these proceedings, but there is-no appeal from that judgment.
Soon after the attachment was levied, Bain, the appellee, interposed a claim to the property levied on. He filed his affidavit of ownership, and executed the necessary claim-bond, to institute the statutory action, known in our jurisprudence as a trial of the right of property. This is not an independent suit, which parties may inaugurate in the first instance. It is statutory, and consequential in its nature. It is consequential, or collateral to the main suit. It most frequently arises when personal goods are levied on under execution or attachment against one, which are claimed to be the property of another. The interposition of. such claim, by affidavit and bond, suspends sale under the process, until the issue of ownership is determined. The issue is formed by an averment, by the plaintiff, that the property seized is-,.the propertyof the'-d'efendant in-
When, however, the plaintiff has shown a prima facie right of recovery, by showing prior possession in defendant, or other proof of liability, then the burden of proof shifts, and the claimant must establish his right to the property. He can not' show that the right and title is in a third person, unless he shows that he has acquired that third pex-Son’s right. — 2 Brick. Digest, 480, § 67; Elliott v. Stocks, 67 Ala. 290. But still, as stated in this last case, the onus is on the plaintiff in the first instance.
The attachment, by which the present proceedings were inaugurated, was issued by a notary public, and made returnable to thé Circuit Court. That attachment was and is void on its face.— Vann & Waugh v. Adams, 71 Ala. 475. The present suit, as we have shown, grew out of that attachment and its levy, and without them it can not stand. True, the landlord has a lien on the crop grown for rent and advances; but it is not a jus ad rem, nor a jus in re. Till attachment is levied, there can be no valid trial of the right to -it, in the present form of proceeding. Till such levy, the conditions are not presented which authorize such trial. The action being statutory and exceptional, the statutory requisites must precede its institution ; and neither consent nor waiver can dispense with this fundamental condition precedent: it is jurisdictional. The attachment in this case being void, it has'no greater validity than if no attehipt had been made to issue it. The claimant can take advantage of it, because it is void — not merely irregular. 2 Brick. Dig. 480, § 72. He can take advantage of it, because it is the first and fundamental evidence of plaintiff’s right, without which he can not recover. Being void, the first step can not be taken, in showing a prima-facie right of recovery. He falls before he reaches the adversary’s outworks.' — Flash v. Paull, 29 Ala. 141.
We need not consider the several rulings of the Circuit Court. Possibly, the correct practice would have been to rule out the attachmént and levy, as worthless and immaterial. It matters not, however; what the special rulings of the Circuit Court may have been. The plaintiff never can recover; and hence, even if erroneous rulings were committed in submitting ques
Affirmed.