| Ala. | Jan 15, 1847
The levy of an attachment is equivalent to the personal service of process, that is, it has the same effect to give jurisdiction to the court, and entitles it to hear and determine the cause. [4 Stew. & Por. Rep. 184.] It has repeatedly been held, that when an officer returns he has levied an attachment on certain property, it will be intended that it was the defendant’s, although the return affirms nothing in respect to the title. [4 Ala. R. 527.] So where the sheriff returned ah attachment levied on certain land in the possession of a person not a party to the writ, it will be intended, in order to sustain the proceeding, that it was the property of the defendant, and levied on as such.
In Kirksey, et al. v. Bates, 1 Ala. 303" court="Ala." date_filed="1840-01-15" href="https://app.midpage.ai/document/kirksey-v-bates-6501292?utm_source=webapp" opinion_id="6501292">1 Ala. Rep. 303, the attachment issued against the estate of three, and the sheriff returned, that he had levied on certain property, without expressing whose it was; but the replevin bond indicated that it was the property of one of the defendants. This court was of opinion, that the return alone could be looked to as the source of information of the sheriff’s acts, if it be false, it
In Maverick v. Duffee, 1 Ala. R. 433, it was decided that a plea in abatement, that the defendant was not served with a copy of the writ, as directed by the statute, is bad on demurrer. The court remarking “that the only mode by which advantage can be claimed, is by motion to set aside the service for irregularity, which can be granted in the exercise of a sound discretion, if it is necessary to prevent an injury to the defendant, or to advance the cause of justice.”
The effect of the levy of an attachment, we have seen, is to bring the defendant before the court, and the return is quite as much a matter of record, and as conclusive as is the return of the service of a writ of capias ad respondendum ; and if the one cannot be controverted, it is difficult to perceive upon what ground the other may be disputed. If a levy is “fictitious, or merely colorable,” we have said that it may be set aside by the court; perhaps where it falsely affirms the property levied on is the defendant’s, for the purpose of enabling the plaintiff to proceed in his suit, redress might be obtained in the same way. So where the officer is not satisfied that the property he seized was liable to the attachment, he may, on application to the court, obtain permission to amend his return. But following the analogy of