119 Ala. 27 | Ala. | 1898
This action was commenced by appellee, as administratrix of C. C. Hudson, against one J-. W. Land, by attachment before a justice of the peace, on the ground that defendant had fraudulently disposed-of his property, and secreted himself, so that the ordinary process of law could not be served upon him. The writ was levied upon two bales of cotton, the levy being-made by the city marshal of Oxford, and the cotton levied upon being in the railroad depot at Oxanna. Appellant interposed a claim to try the right of property thereto. Motion was made in the justice’s court to discharge the levy, because made by a constable of Oxford, beyond his territorial jurisdiction. The justice granted the motion in the following judgment entry: “Motion sustained and judgment entered in favor of .the claimant for the property attached. Cost of suit taxed against the plaintiff.” From this judgment the.plaintiff appealed to the city court of Anniston. There the plaintiff, the present appellee,filed a motion to amend her affidavit so as to show the relation of landlord and .tenant between her intestate and defendant Land, and that the account sued for was for advances, which motion, over objections of appellant was granted, and the affidavit and complaint were accordingly amended. The transcript from the justice’s, court contains the above entry.. • ...
Various motions, objections and.exceptions .were filed by appellant to the allowance, of :the amendment. .
The statute allows amendments as a.matter, of right, which do not entirely change the parties, or the subject matter.
There is no merit in the contention of appellant that the affidavit and writ were amendable only in the justice’s court, nor is the authority cited.- — Town of Camden v. Bloch, 65 Ala. 236 — in point. That case was taken up on a common laAV writ of certiorari where only matters of laAV apparent on the face of the record are revisable; but where an appeal is taken to the circuit or city, court the rule of procedure is different.
The case when appealed to the city court, was triable de novo. Code, §488. The levy of the attachment created a lien on the property (Code, §548), and this lien continued until final judgment. • The lien having been created by the leA^y, it was certainly for the city court to allow plaintiff to state in the pleadings the facts upon which said lien was based; and especially Avhen the specific property levied upon was such as was subject to a statutory lien, it cannot be said that appellant was prejudiced by allowing an amendment seeking the condemnation of the specific property, instead of the estate of the defendant generally. The question is, Avhether or not the property claimed is the property of the defendant, and liable to the satisfaction of the writ. The issue betAveen plaintiff and the claimant was not changed by the allowance of the amendment. Code, §4142.
There is nothing-in the objection that there was no judgment before the justice of the peace to appeal from. The foregoing entry Avas as clear a judgment as is required in proceedings before a justice. There was an adjudication in favor of claimant and against plaintiff, and a recital which would have supported an execution for costs.
Nor is there merit in the objection that the attachment suit was not tried before the claim suit, consequently it is immaterial whether service was had on defendant or not, so far as appellant’s rights are concerned. The attachment suit could not proceed to final judgment until the claim suit Avas determined. Abraham v. Nicrosi, 87 Ala. 173; Moore v. Dickerson, 44 Ala. 485; Lampley v. Beavers, 25 Ala. 534.
The attachment suit was for $64.55 for advances made by plaintiff as landlord to defendant Land, under section 2703 of the Code. The attachment was sued out by one W. G. Mangham, as the agent of appellee. Against appellant’s objection, Mangham was permitted to testify that Land had a pass book with the items of the account and that he Avent over it Avith him, and that Land admitted that he got the items entered on said book. Ordinarily this evidence would be res inter alios acta, but in this case appellee having introduced the attachment, it was sufficient evidence of 'her debt, and could not be questioned by the claimant, appellant. Pulliam v. Newberry’s Adm. 41 Ala. 168; Moore, Marsh & Co. v. Penn & Co. 95 Ala. 200.
The cotton in controversy was purchased from defendant by one J. W. Mason, as the agent of appellant. There is some discrepancy in the testimony as to whether or not Mason knew of plaintiff’s claim, he having on a previous occasion purchased cotton from Land; but it is shown by the witness J. G. Hudson, and not denied by Mason, that on the day these íavo bales were purchased, and Avhile Hudson was in Mason’s office, Land came in with samples of cotton, offering it for sale, when Hudson notified him that Land was a tenant on his brother’s (plaintiff’s intestate’s) place. This Avas sufficient notice to put him on inquiry. Kelly v. Eyster, 102 Ala. 325.
This case was tried Avithout the intervention of a jury, and Ave think the evidence was sufficient to sustain the city court in the conclusions reached, and its judgment is therefore affirmed.
