Stephens v. Adams

93 Ala. 117 | Ala. | 1890

STONE, C. J.

— These cases present questions in all respects identical. The suits were insiituted before a justice of the peace, by attachment for rent oí' a hotel .building, alleged to be due. Attached to the'hotel was a stable and lot for mules and other cattle. The attachment was sued out Under sections 3070-1 of the Code of 1886. The ground of attachment was, and is, “that the said J. G. Stephens, the said tenant of said premises, refuses on demand made by affiant, the owner, holder and assignee as aforesaid, to pay said” rent notes. The notes were made payable to Mrs. Green, and were transferred to Adams, the plaintiff, not by indorsement on the notes, but by a separate writing, reciting a consideration in money. The justice of the peace gave judgment in favor of the plaintiff, and there was an appeal to the Circuit Court.

The record before us, outside of the bill of exceptions, shows only the final trial, verdict of the jury, and judgment of the court pronounced upon it. The motions to discharge the levy, to dissolve the attachment, and to dismiss the suit, and the court’s ruling's on these several motions, are shown only in the bill of exceptions. The rulings on these several motions being-judgments of the court, and more or less decisive of the case, should they not have been made matter of record proper ? The office of a bill of exceptions is to present matters which do not and should not otherwise appear of record. — 3 Brick. Dig. 78, §§ 7 and 8. We need not, however, invoke this principle in this case.

The motion to discharge the levy was rested on the contention, that because the property seized was not in the hotel building, there was no lien upon it, and it was therefore not subject to the attachment. This is too narrow a view of the statute. The several articles attached were kept on the premises, and were used generally in connection with the hotel business. This clearly brought them within the principle which secures to the landland a lien for unpaid rent, if the ownership of the property was such that a lien could attach. Code of 1886, § 3069; 5 Am. & Eng. Encyc. of Law, 709-10; 2 Wood’s Landlord and Tenant, § 540; ) Woodfall’s L. & T. 435; 2 Taylor’s L. & T. §§ 558 to 583. See, also, Un. W. & E. Co. v. McIntyre, 84 Ala. 78; Abraham v. Nicrosi, 87 Ala. 173.

Section 3074 of the Code declares, that “the lien [for rent] provided in this article shall vest in any assignee of the claim.” We have shown that Adams became the owner, of the rent notes, not by indorsement on the notes, but by a separate written assignment. Motion was made first before the justice, and renewed in the Circuit Court, to dissolve the attachment, on the ground that Adams was not an “assignee of the claim” in the sense that would enable him to maintain attachment on it in his own name. We can not agree to this. The present suit is brought on promissory notes that are not negotiable. Our statute — Code of 1886, § 2594 — provides, that such actions “must be prosecuted in the name of the party really interested, whether he has the legal title or not.” Adams owned the notes, and was therefore : he party really interested. And although the assignment, being by a separate writing, would not probably have enabled him to sue in his own name in the absence of our statute, it was nevertheless an assignment, as contradistinguished from a transfer by delivery. Planters & Merchants Ins. Co. v. Tunstall, 72 Ala. 142.

The notes, the subject of suit in these cases, contain a waiver of exemption of personal property. Motion was made to dismiss the attachment, on the alleged ground that this waiver was a security taken, and therefore an abandonment of the lien. The motion was made first before the juslice, and renewed in the Circuit Court. The landlord’s lien is secured by statute, and it contains no provision that taking a waive note for rent is a surrender of the lien.— Westmoreland v. Foster, 60 Ala. 448; 3 Brick. Dig. 605, § 107. Even taking security is not a waiver of the lien. — Coleman v. Siler, 74 Ala. 435.

We have elaborated the foregoing principles more than we need-have done. The judgment-entry recites as follows: “This day came tire parties by their attorneys, and the defendant pleads the general issue, and issue being joined on said plea, thereupon came a jury,” &c. The record then shows a verdict of the jury in favor of plaintiff, and a judgment upon it. There is nothing in the record which explains, or qualifies, this general appearance. This renders the judgment regular and binding on the defendants personally, even if the attachment proceedings had been void on their face. — Marshall v. White, 8 Porter, 551; Matthews v. Sands, 29 Ala. 136; Flash v. Paulf, Ib. 141; McElhaney v. Gilleland, 30 Ala. 183; Grigg v. Gilmer, 54 Ala. 425.

Affirmed.