Knowles v. Steed

79 Ala. 427 | Ala. | 1885

STONE, C. J.

In Fitzsimmons v. Howard, 69 Ala. 590, speaking of affidavits as a leading process in attachments for rent, we enumerated certain jurisdictional averments, which, we said, the affidavit must contain ; and, failing in either of them, we declared it was not amendable. We added: “An affidavit, wanting in any of these essentials, will be abated on plea.” Among the essentials, we mentioned the enumerated statutory acts of malfeasance by the tenant, which will authorize attachment for rent; the one applicable to this case being, “that the tenant has removed from the premises . . some part of the crop,” &c. The affidavit in this case, on which the attachment was sued out, simply averred, “that, as such tenants, they had removed a portion of the crop grown on said rented premises, without the knowledge or consent of their landlord.” The affidavit in this case fails to come up to statutory requirements; and the omission being jurisdictional, it was not amendable.—Staggers v. Washington, 56 Ala. 225; Flexner v. Dickerson, 65 Ala. 129.

It is contended for appellant, that the error noted above was waived by the appeal taken. This is claimed under section 3121 of the Code of 1876, which provides, that appeals from justices of the peace “must be tried according to equity and justice, without regard to any defect in the summons, or other process before the justice.” This is certainly the rule as to ordinary defenses.—Clough v. Johnson, 9 Ala. 425; Glaze v. Blake, 56 Ala. 379; Perry v. Hurt, 54 Ala. 285; Abrams v. Johnson, 65 Ala. 465. There is, however, another section of the Code which governs this case. Section 3693 of the Code of 1876 declares, that “no attachment can be quashed or dismissed in the Circuit Court, for any defect of form in the affidavit, attachment, or bond, or for want of a bond, if the plaintiff is willing and able to execute a sufficient bond ; and no objection can be made in the appellate court to the regularity of the proceedings, which was not made before the justice of the peace.” The present case does not come under the first clause of the section copied, for the defect in the affidavit is not one of form, but one of substance. Even this, however, to be available in the appellate court, must have been made before the justice of the peace.—Staggers v. Washington, 56 Ala. 225. Objection was made before the justice in this case, and we think sufficiently made. Except in special cases, of which this is not one, formal pleadings are not required in a justice’s court.

We need not consider whether the Circuit Court erred in allowing an amendment of the plea in abatement. It was sufficient without amendment.

Affirmed.