Rosenberg v. Claflin Co.

| Ala. | Dec 15, 1891

WALKEN, J.

1. The record fails to show that any action was taken by the Circuit Court on the motion of the defendants to require the plaintiff to give security for the costs. As it does not appear that the motion was insisted on, or even called to the attention of the court, the presumption on appeal is that it was abandoned or waived. Hutcheson v. Powell, 92 Ala. 619" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/hutchison--wilson-v-powell-6514327?utm_source=webapp" opinion_id="6514327">92 Ala. 619; Covington County v. Kinney, 45 Ala. 176" court="Ala." date_filed="1871-01-15" href="https://app.midpage.ai/document/covington-county-v-kinney-6507920?utm_source=webapp" opinion_id="6507920">45 Ala. 176; Dougherty v. Colquitt, 2 Ala. 337" court="Ala." date_filed="1841-01-15" href="https://app.midpage.ai/document/dougherty-v-colquitt-6501453?utm_source=webapp" opinion_id="6501453">2 Ala. 337.

2. A suit commenced by attachment is triable' at the return term of the writ, if the levy has been made and notice thereof given twenty days before the commencement of such term. — Code, § 2995. If the notice of the levy has not then been given, and the defendant does not appear, the case can not be tried at that term; but it may be continued, and notice of the levy may be given thereafter. No reason is perceived why the mere failure of the officer to serve the notice at the proper time should confer on the defendant the right to have the attachment dismissed. However that may be, it is plain that nothing remains to be accomplished by a service of the notice, if the defendant voluntarily appears and pleads to the complaint. The purpose of the notice is to afford the defendant the opportunity to appear and make defense. A general appearance dispenses with the necessity of a formal notice, and is a waiver of any previous irregularity in the service of process. — Lampley v. Beavers, 25 Ala. 534" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/lampley-v-beavers-6505423?utm_source=webapp" opinion_id="6505423">25 Ala. 534; Moore v. Easley, 18 Ala. 619" court="Ala." date_filed="1851-01-15" href="https://app.midpage.ai/document/moore-v-easley-6504415?utm_source=webapp" opinion_id="6504415">18 Ala. 619; Peebles v. Weir, 60 Ala. 413" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/peebles-v-weir-6510087?utm_source=webapp" opinion_id="6510087">60 Ala. 413. The appearance of the defendants in this case was not limited to the purpose of the motion to quash the levy and to dissolve and dismiss the attachment. They recognized the case as in court by filing a number of pleas, several of which involved a recognition of the service of the writ of attachment, and by going to trial, without objection, so far as the record discloses. All objections because of the failure of the officer to serve written notice of the levy were waived by this general appearance. If the defendant in attachment appears and pleads, the cause proceeds as in suits commenced by summons and complaint. — Code, § 2996. In claiming that the motion to quash the levy and to dissolve and dismiss the attachment should have been granted because of the failure to serve written notice of the levy, the appellants urge an objection which has been removed by themselves.

3. The original affidavit for the attachment correctly stated the name of the plaintiff, but did not describe it either as a partnership or as a corporation. The plaintiff was permitted to file an amended affidavit, in which its corporate character is duly stated. It has been held that the absence of an allegation of the plaintiff’s corporate capacity, in an original complaint filed by a corporation, could not be regarded as a failure to name any plaintiff at all, and that an amendment of the complaint by stating the plaintiff’s corporate character should be allowed. — Southern Life Ins. Co. v. Roberts, 60 Ala. 431" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/southern-life-ins-v-roberts-6510092?utm_source=webapp" opinion_id="6510092">60 Ala. 431; Alabama Conference v. Price, 42 Ala. 47. Such an amendment is a mere correction of the description of a plaintiff, already named; it does not amount to a departure from the original complaint, to the institution of a new action, or to the introduction of a different party plaintiff. A similar amendment of tbe affidavit in an attachment case is plainly authorized by the provision of the statute that the plaintiff, before or during the trial, must be permitted to amend any defect of form or substance in the affidavit; and no attachment must be dismissed for any defect in the affidavit, if the plaintiff, his agent, or attorney, will make a sufficient affidavit. — Code, § 2998. The mandate of the statute, that the attachment law must be liberally construed to advance its manifest intent, need not be invoked to justify this conclusion. The sufficiency of the defendants’ pleas numbered 4, 5, 6, 7, 8 and 9 depended upon the correctness of the assumption that the suit was not commenced by the plaintiff corporation, because its corporate capacity was not stated in the original affidavit. That assumption was erroneous, and there was no error in striking the above mentioned pleas from the files. None of them presented a valid defense to the suit.

4. The first plea was a denial that the plaintiff is a corporation authorized to maintain this suit. This plea Avas insufficient, because it was not sworn to. It presented an issue as to the existence of the plaintiff as a corporation. The plaintiff can not be required to prove its corporate existence, unless the same is denied by a plea verified by affidavit. — Acts of Ala. 1888-9, p. 57.

5-7. No demurrer to the thirteenth plea is found in the record. As there is nothing to show what were the grounds of the demurrer, we are unable to review the ruling of the court in sustaining it. However erroneous that ruling may have been, it involved no injury to the appellants. The plea amounted only to the general issue. — Louisville. & Nashville R. R. Co. v. Trammell, 93 Ala. 350" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-trammell-6514419?utm_source=webapp" opinion_id="6514419">93 Ala. 350. The twelfth plea amounted to the same thing. Under this plea, the defendant had the full benfit of all matter of defense that would have been available to it under the thirteenth plea. Sustaining the demurrer to the latter plea was, for this reason, error without injury, if error at all. — Manning v. Maroney, 87 Ala. 563" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/manning-v-maroney-6513591?utm_source=webapp" opinion_id="6513591">87 Ala. 563.

We have discovered no error in the record, and the judgment of the Circuit Court must be affirmed.