Jones v. Pope

| Ala. | Jan 15, 1844

ORMOND, J.

It is objected, that the attachment in this case was sued out without an affidavit or bond, as required by the statute, but we think this objection cannot be taken on error. The statute declares, “that every attachment issued without bond and affidavit, taken and returned as aforesaid, shall be abated on the plea of the defendant.” [Clay’s Dig. 55, § 3.] The design of the statute is clear. The attachment is merely process levied on the defendant’s goods, instead of personal service. It is the substitute for the capias ad respondendum, and like that, if issued improperly, must be abated by plea.

It is not a valid argument, that the defendant may not have notice, and therefore, may not be able to plead in abatement. This must have been foreseen, as a probable consequence, when the attachment law was passed, as the non-residence of the defendant is one of the causes for which an attachment may issue. The bond which the plaintiff was required to give, was considered a sufficient indemnity, and in a proper case, where no notice, in fact, had been received of the pendency of the attachment, a court of chancery would interpose and prevent injustice from being done.

The indebtedness of the defendant in atachment, to the plaintiff, was, it is true, an indispensable pre-requisite to the rendition of judgment against the garnishee, but it was not a matter involved in the issue tried between the garnishee and the plaintiff in attachment, the whole object of which was, to ascertain whether the garnishee was, or not, indebted to the defendant in attachment. The issue being found for the plaintiff, ascertained the existence of the debt due by the garnishee to the defendant, and supported the levy of the attachment, and as the plaintiff subsequently recovered a judgment against the defendant, he was entitled to a condemnation of the debt ascertained to be due from the garnishee.

The result of this examination is, that there is no error in the judgment of the court below, and it is therefore aflh’med.