Loomis v. Allen

ORMOND, J. — The attachment in this case is issued upon the following clause of the attachment law : “ And in case of the death of any debtor residing out of the limits of the State, having lands or other property therein, the creditor resident within the State, shall in like manner be entitled to recover by attachment, against the executors, and administrators; and execution shall issue, accordingly, against the property so left within the State.” [Clay’s Dig. 58, § 14.] The design of this Statute appears to have been, to give the resident creditor a remedy against the property of his deceased non-resident debt- or, without taking out letters of administration. To accomplish this, it permits the attachment to issue against the nonresident executor or administrator of the deceased non-resident debtor, to be levied on the property of the debtor left within this State. We entertain no doubt, that the attachment must be levied on property which the debtor left within this State, and which has not been reduced into possession by the foreign executor, or administrator, so as to be assets in his hands. It is equally clear, that the attachment can only be sued out by the resident citizen. As neither of these facts appear on the face of the proceedings, it becomes necessary to inquire, how they may be taken advantage of. [709] The 31st section of the attachment law, (Clay’s Dig. 61,) ex* pressly declares, that it shall not be necessary to state in the affidavit made for the purpose of suing out an attachment, that the plaintiff is a resident, and that if any one not authorized should sue out an attachment, it may be abated on plea. So, in a previous part of the act, it is provided, “ that every attachment issued without bond, and affidavit, taken and returned as aforesaid, shall be abated, on the plea of the defendant.” Accordingly it was held in Jackson v. Stanley, 2 Ala. Rep. 326, that when the fact of the non-residence of the plaintiff did not appear in the affidavit, advantage could only be taken of it by plea in abatement. To the same effect is Calhoun v. Cozzens, 3 Ala. Rep. 21; and it is considered in the case first cited, that the effect of our statutes regulating this proceeding, is, that where the jurisdiction is not questioned by a plea in abatement, suits commenced in this mode, are upon tile same footing with suits commenced by writ. It is urged, that the attachment authorized by this section of the act, is peculiar, acting as it does upon the property levied on, and that the other portions of the act requiring the jurisdiction to be questioned by a plea in abatement, do not apply. We can perceive no reason for making such a distinction, and certainly the statute makes none. The 31st section before referred to, is general in its terms, it is subsequent in point of time, to the act under which this attachment was sued out, and was doubtless intended to embrace it. Considering this, then, as a suit commenced in the ordinary mode, the default admitted the indebtedness charged in the declaration, and authorized the rendition of a judgment. What that judgment should have been, we now proceed to inquire. It is very clear, that under this section of the attachment law, the proper fund for the discharge of the judgment, is the property levied on; the judgment of the Court should therefore be a condemnation ¡of the slave levied on by the sheriff, to the satisfaction of the debt. But as the slave in this case has been replevied by the administrator, a judgment should have been rendered against him personally, to be discharged by the delivery of the slave levied on, to the sheriff. The judgment rendered in this case was dp bonis propriis, but we can perceive no difference between this case and that [710] of a resident administrator, as to the power of this Court to amend the judgment, which we have always considered a mere clerical misprision. The judgment will therefore be here amended, at the cost of the plaintiff in error.