Peebles v. Weir, 60 Ala. 413

Peebles v. Weir

60 Ala. 413 | Ala. | 1877

BRICKELL, C. J.

1. Attachments, founded on a past-due demand, are triable at the term of the court to which they are returnable, if the levy is made, and notice given, twenty days before the commencement of the term. — Code of 1876, § 3323; Rice v. Clements, at last term. Actual notice to the defendant, that he may have the opportunity of appearing and making defense, it is the purpose of the statute to afford him, as the condition on which the plaintiff may proceed to trial and judgment at the return term. The purpose of the statute is fully accomplished, whenever, from the proceedings in the cause, it appears in authentic form that he has had actual notice for the time required. The right to replevy the goods levied on by the writ is conferred by the statute, — -a right which cannot be exercised without notice of the levy. If the right is exercised, it must be by the execution of a bond, with surety, payable to the plaintiff in the *416writ, in double the amount of the demand, and with condition that, if he fail in the action, he or his sureties will return the specific property within thirty days. If they fail to return it, the bond is forfeited, and execution thereon issues against the principal and sureties, for the amount of the judgment and costs. — Code of 1876, §§ 3289-92. By the execution of the bond, the defendant becomes a party to the suit, and his sureties become parties, so far that an execution may issue against them, if he is unsuccessful in the suit, and does not restore the goods to the custody of the proper officer. The execution of the bond is, therefore, an admission of notice of the levy, and of the suit; and if it is executed twenty days before the commencement of the term, as it was in the present case, authorizes the court to proceed to trial. It is a paper belonging to the files and record of the cause, of which the court must take notice. —Drake on Attachment, § 332; Wilkinson v. Patterson, 6 How. (Miss.) 193; Richards v. Mooney, 39 Miss. 357; Binder v. Klive, 64 Penn. St. 130.

2. The proper direction of an attachment, returnable to the Circuit Court, is “ To any sheriff of the State of Alabama.”— Code of 1876, § 3264. If it is erroneously directed, the defect can be made available only by plea in abatement. Ware v. Todd, 1 Ala. 199. Defects in process, the matter of a plea in abatement, may be waived. Pleas in abatement can be filed only within the three first days of the term, and the matter of them is waived, if they are not filed within that time, and it cannot on error furnish cause of reversal. Defects of form,'in writs of attachment, are amendable, before or during the trial; and the attachment law must be liberally construed to advance its manifest intent. — Code of 1876, § 3315. If these defects were available on error, not having been previously objected to, the plaintiff would be deprived of the right of curing them by amendment.

3-4. The levy of the attachment, by a person appointed by the justice to act as a special constable, was certainly irregular, and void. Of itself, it would not have conferred jurisdiction on the Circuit Court to render judgment by default against the defendant.—Briersfield v. Austin, 39 Ala. 227. But the court did not acquire jurisdiction to proceed to judgment by default, from the levy of the writ. It was acquired from the notice to the defendant of the pendency of the suit, which was admitted by the execution of the replevy bond, its recitals, and condition. Jurisdiction of the person of a party to the suit may be acquired by levy of an attachment, followed by the actual or constructive notice the statute authorizes, or by personal service of process, or by voluntary *417appearance without process, or by his voluntary introduction of himself into the proceedings, bringing himself within the reach of proper action by the court. — -Drake on Attachment, § 332, and authorities cited.

We do not think any one of the objections taken to the judgment of the Circuit Court ought to prevail, and it is affirmed.