Cockrell v. McGraw

RICE, O. J.— A suit may be commenced by original attachment; and when thus commenced, the attachment is the leading process in it. [527] If the attachment be issued without the affidavit and bond prescribed by the Code, it “ may be abated onplea of the defendant, filed within the three first days of the return term.”—Code, § 2561. The Code further provides, that all pleas in abatement, unless it be of matter of record, must be verified by affidavit, (Code, § 2288;) and that the attachment law must be liberally construed, to advance the manifest intent of the law,—Code, § 2562. The attachment, in the ease at bar, is not assailed by plea, nor for any defects apparent upon the face of it, or of the affidavit, or of the bond, nor by the defendant; but it is assailed by a motion to quash, made by two gentlemen “as amiei curies, and at the instance of John M. Sprowl, who was shown to the court to have an interest in the question and motion ; ” and the motion is predicated upon two specified grounds, neither of which is verified or supported by any thing apparent upon the attachment, affidavit, or bond of the plaintiff, nor by any affidavit. No question, therefore, is now presented, as to the right of the defendant in attachment, or of persons who are privies in interest, to found amotion to quash upon defects ■apparent on the face of the attachment and affidavit. It may be conceded, that a plea in abatement is not necessary to entitle the defendant, or any privy in interest, to make such ■defects available to defeat the proceeding.—Reid v. McLeod & Co., 20 Ala. R. 576. But the question here is, wdiether an original attachment, regular upon its face, and supported by an affidavit regular upon its face, can be quashed, on the motion of a person not a party to the record, but who has an interest in the question and motion, for matter' dehors the record, and which is properly triable by a jury. Ye cannot hesitate to decide that question in the negative. A person, not a party to the record or suit, cannot be thus permitted to intervene and tender an issue upon matter en pais, without violating the .rules of pleading, and the manifest intent of the attachment law.—Edwards v. Lewis, 16 Ala. 813. It does not follow, that because such a person cannot snake such a motion, he is without remedy, if he can [528] show himself injuriously and illegally affected by the-attachment.—See Perkins v. Reed, 14 Ala. Rep. 536; Milman v. Levy, 7 Georgia R. 167; Matthews v. Sands, 29 Ala. R. 136. The court below erred, iu granting, instead of overruling the motion to quash. Its judgment is, therefore,, reversed, and the cause remanded.