McBride v. Sconyers

Stephens, J. A judgment rendered against the defendant and the surety on his replevy bond, on the trial of an issue arising upon the foreclosure of a landlord’s lien for supplies, as provided in sections 3348 and 3366 of the Civil Code of 1910, is not subject to arrest upon the ground that it appears from the record that no demand for payment had been made upon the defendant and that it does not appear why such demand was not made as required by the statute as to affidavits as the basis for the foreclosure of such liens. Since “all affidavits for the foreclosure of liens . . shall be amendable to the same extent as ordinary declarations . . ” (Civil Code of 1910, § 5706), the omissions referred to constituted amendable defects which were cured by the verdict and judgment. The court did not err in overruling the motion in arrest of judgment. A different question might have been presented had the levy made under the foreclosure proceedings been attacked by affidavit of illegality upon the ground of the alleged omissions in the affidavit for foreclosure. Judgment affirmed. Jenkins, P. J., and Sutton, J., concur. Alfred Herrington Jr., for plaintiffs in error. J. B. Powell Jr., contra.