Dumes v. McLosky

ORMOND, J. This proceeding is upon a statute hpplicable only to the city of Mobile, passed 17th January, 1834; “that whenever any landlord, his agent, or attorney, shall make complaint, on oath, to any justice of the peace, in the city of Mobile, that any person is indebted to him for the rent of any tenement within the corporate limits of the city, and shall enter into bond and security in four times the amount of the rent alledged to be due, conditioned to pay the defendant all costs and damages for the wrongful suing out of the warrant hereinafter mentioned, it shall be lawful for the justice of the peace to issue his warrant, returnable before him, not less than four, nor more than ten days from the time the warrant shall be issued, directed to any constable of the city, requiring him to seize, and to take into his possession any goods and chattels which may be found in the tenement for which the ' rent shall be due, and the constable shall keep the goods and chattels so seized, to answer the judgment which may be rendered by the justice of the peace in the case, unless the debt shall be sooner paid, with all costs, and the justice on the return of the warrant shall proceed and render judgment according to the merits of the case.” It was also provided that the defendant might replevy the property by entering into bond, and that upon failure to deliver the property, the bond should have the force of a judgment. The 2d section requires the warrant to be made returnable to the circuit or county court, where the sum claimed exceeds fifty dollars. The remedy given by this act is a proceeding in rem — it is a right given to the landlord to condemn any of the defendant’s goods found on the premises, for the payment of rent in arrears. No other property of the tenant is subject to the distress than that found on the premises, nor will the judgment operate against any other property of the defendant, than that taken by the distress warrant. It is proper, however, that-the judgment should ascer [241] tain the amount of rent due, because, if the property distrained is replevied, and not delivered to the officer to be sold in satisfaction of the judgment, an execution issues on the replevy bond for the amount of rent due, as ascertained by the judgment; and also to inform the officer what amount of money to make out of the distress. The proper judgment of the court is a condemnation of the property levied on by the distress; and no other property of the tenant can be sold by the sheriff, though the goods distrained may be insufficient to satisfy the judgment. The judgment in this case, not being a condemnation of the goods distrained, but general against the administrator of the tenant, to be levied on any of the goods, lands or tenements, of the deceased, is erroneous. But there is a more formidable objection than this, to this proceeding, which is, that it will not lie against the representative of the tenant, but must be prosecuted against him individually. This is a summary remedy, and according to all our decisions upon this class of cases, cannot be extended by construction beyond its terms. To permit it to lie against the personal representative after the decease of the tenant, would be attended with mischievous consequences, which it is not necessary to enumerate, as the action is not given after the death of the tenant. [See Logan, adm’r, v. Barclay, 3 Ala. Rep. 361.] Let the judgment be reversed.