Wilson v. Callan, 63 So. 27

Wilson v. Callan

63 So. 27 | Ala. Ct. App. | 1913

WALKER, P. J. —

Section 2966 of the Code omits the provision which was contained in the corresponding section of the Code of 1896 (Code of 1896, § 565) that “the defendant must not deny or put in issue the cause for which the attachment issued.” The substance of the omitted provision had formed a part of the statute law of the state since 1837. — Olay’s Digest, p. 61, § 32; Acts of Ala. 1837, p. 62, § 5. Prior to its enactment it had been decided that a question as to the existence of the ground upon which an attachment had been sued out was one properly raised by a plea in abatement, the court saying: “But if the abatable matter did not appear on the face of the proceedings, as in this case, it should be presented by a plea in abatement.” — Brown v. Massey, 3 Stew. 226.. In reference to the provision above, quoted it was said in the opinion rendered in the case of Kirksey v. Jones, 7 Ala. 622: “The section referred to Avas introduced to avoid tiie abatement of the attachment suit, by a plea that the cause for issuing did not exist, as Avas held by this court in Brown v. Massey, 3 Stew. 226.” In this situation it is apparent that a result of the omission from the present statute of the provision referred to is to revive the rule announced in the opinion in the case of Brown v. Massey as to the method to be pursued by a defendant in attachment, in raising a question as to the existence of the ground upon Avliich it AA’as sued out.

*268In the present case the defendants did not, until more than a year after they had replevied the property levied on under the writ of attachment, undertake, in the manner held in Brotan v. Massey to be the proper one, namely, by plea in abatement, to raise the question of the existence of the ground on which tlie attachment had been sued out. It is plain that this plea was not filed within the proper time. — Code, § 5347; Id. p. 1520, rule 12; Peebles v. Weir, 60 Ala. 413.

If it be conceded that the court might have permitted the plea to be entertained yet unquestionably it was within its discretion to refuse to do so on the ground that it had not been filed at the proper time. — Hawkins v. Armour Packing Co., 105 Ala. 545, 17 South. 16. It follows that reversible error was not committed by the court in striking the plea in abatement. •

The action of the court in striking the motion, previously made by the defendants to require the plaintiff to show cause why the attachment should not be dissolved, is not subject to review on appeal. If it was permissible for the court to take cognizance of the objection when presented in that mode, it was its right to refuse to do so, and such an exercise of its discretion is not revisable on appeal. — Ellison et al. v. Mounts, 12 Ala. 472; DeBardeleben v. Crosby, 53 Ala. 364.

The appellants are not entitled to a reversal of the judgment because of either of the rulings which are complained of.

Affirmed.