47 Ala. 185 | Ala. | 1872
The material facts of this case may be stated as follows: On December 12, 1866, Courtnay, Tennant & Co., as plaintiffs, brought suit against May, as de
The motions will be first disposed of. The allowance of appeals to this court is wholly by legislative enactment. The sections of the statute giving this right is in these words: “ Erom any final judgment or decree of the chancery, circuit, or probate courts, except in such cases as are otherwise directed by law, an appeal lies to the supreme court, for the examination thereof, as matter of right, on the application of either party, or their personal representatives, and the clerk, register, or judge of probate, must certify tlie fact, that such appeal was taken and the time when, as part of the record, which gives the supreme court jurisdiction ofthecase.” — Revised Code, § 3485. “ An appeal to the supreme court may be taken before the final determination of the cause, from any judgment or decree, overruling a motion to dismiss a bill for want of equity, or overruling a motion to dismiss or quash an attachment, or sustaining a demurrer to a plea in abatement to an attachment, or sustaining an attachment against matters set up in abatement of it, either in the way of an agreed case, or by plea or otherwise; but such appeal shall be taken only after the consent of the opposite party or his attorney is obtained to its being taken; and on the trial of such appeal, there shall not be a reversal, if the supreme court discovers that the defect or error alleged or insisted on can be removed or remedied by amendment, under existing laws.” — Revised Code, § 3486. The language thus used can not be enlarged by this court. Its meaning is perfectly apparent. — 43 Ala. 617. It is evident that Malone & Eoote are not persons who come within the description of parties to this suit, nor have they appealed from the judgment overruling their motion to dismiss the attachment. They were not made parties to the suit in the court below. There is no judgment against them, either interlocutory or final, in this case, They can not, therefore, be heard here upon appeal. The circuit court merely refused to entertain their motion to <c dismiss and dissolve the at
The assignment of errors by Malone & Foote being stricken out, those that remain on behalf of May are too indefinite and uncertain. They do not conform to the rule of this court, which requires a concise statement in writing of what constitutes the error relied on.- — Rule of Practice No. 1; Revised Code, p. 816. Such an assignment of errors is insufficient, and will be disregarded. In this May can not be injiued. His bankruptcy protects him against the judgment. And if Malone & Foote have any right supe
This suit was pending at the date of May’s'application to be declared a bankrupt. He might tíren have applied to the court in which his petition was filed and have had an order to stay the proceedings in the court below until his application in bankruptcy was determined, tad if the bankrupt court failed to stay the proceedings thus begun, the State court might proceed to judgment for the purpose of ascertaining the amount due. Here the amount of the judgment was confessed, and judgment was entered only for the amount so confessed or agreed on, and although execution ragainst the defendant is not ordered to be stayed, yet the judgment is ordered to be enforced only against the property levied on under the attachment. Bankrupt Act, § 21, supra. Though this may not be a very technical compliance with the law, it does the defendant, May, no injury, and he has no right to eomplain. — Shep. Dig. p. 568, § 82.
All the bankrupt’s property in the mortgaged premises passed by his bankruptcy to the assignee, and he has no interest therein which the attachment can affect. — Bankrupt Act, supra, § 14; Dunn v. Massey, 6 Ad. & E. 479; Mays v. Manuf. Nat. Bank, 64 Penn. And the attachment having been levied long before the passage of the bankrupt act, it is not affected by its provisions. The lien of the attachment is not, in such a case, displaced by the bankruptcy of the defendant. — Act, supra, §§ 14, 20.
The judgment of the court below is affirmed, with costs.