44 So. 406 | Ala. | 1907
Appellants’ counsel state that there are two propositions for the consideration of the court on appeal. By this statement, and because they insist on only two alleged erroneous rulings of the court, we are justified in confining ourselves alone to these two.
First, it is insisted, because in rendering judgment against defendant, Reynolds, the court did not also ren
It might be a sufficient answer to this proposition to state that the replevy bond contains no provision of the kind. Its only provision in that respect is that the defendant and his sureties shall within 30 days after judgment in said suit, if the defendant shall fail in said action, return the specific property attached to the sheriff. Besides, there is no statute in this state requiring an order or judgment of condemnation of the property attached in the event of the failure of the defendant in the suit, in order to create an attachment lien. The defendant in this suit personally appeard, and consented to a judgment against himself, and the judgment rendered was one against him in personam. The property having been seized under attachment, a lien was thereby in legal effect created on the property, and it was brought under the jurisdiction of the court. — Berney v. Pinckard, 87 Ala. 577, 6 South. 364.
Section 562 of the Code of 1896 provides: “If the defendant appears and pleads, the cause proceeds as in suits commenced by summons and complaint; if he fails to appear, or appearing, fails to plead within the time required by law, the plaintiff may take judgment by default or nil dicit, and may execute a writ of inquiry.” Here, as seen, he appeared, and consented to a judgment against himself, which was properly rendered against him in personam. Section 570 provides: “If the judgment of the plaintiff is not satisfied by the property attached, or by the garnishee, execution must issue which may be levied on, and satisfied by any property of the defendant; and the■ plaintiff may proceed to a sale of the property attached by a venditioni exponas, or by any ordinary writ of execution.” Where the defendant
The issuance of execution was certainly proper, and was not, as contended, a release of the attachment lien.
Counsel for appellants cite cases from the Indiana court to sustain their contention, but an examination of those authorities makes it appear that a statute in that state makes it necessary that there shall be an order of condemnation or sale of the property attached, and a special execution, in order to create the lien on the property attached for the payment of the personal judgment rendered against the defendant. The language of the decision is: “No lien created by issuing and levy of an attachment under our statute, can exist or have any force or effect after judgment has been rendered in the cause, in aid of which it has been issued, unless there has been a special judgment or order of sale of the property attached, and a special execution.”- — Lowry v. McGee, 75 Ind. 510, and cases there cited.
The other point raised is that of the defendant’s claim of exemption. This claim, however, cannot have the effect to render the ruling of the court denying the su-persedeas erroneous, since the replevy bond contained a
Affirmed.
