Staggers v. Washington

STONE, J. The present suit was commenced by attachment, under the act approved March 8, 1871, “ to amend section 2961 of the Revised Code.” — Pamph. Acts, 19. That statute enacts, that “ a landlord has a lien on the crop grown on rented lands, superior to all other liens, for rent on, and advances made to assist or aid in the cultivation of said land for the current year, and is entitled to process of attachment for the recovery of the same, * * * first, when the tenant is about to remove the crop from the premises, without paying the rent and advances; second, when he has removed it, or any portion thereof, without the consent of the landlord.” The questions raised by the present record are — first, whether the affidavit on which attachment issued is amendable under the statute; and, second, whether the present attachment can be amended, so as to make it good. The Circuit Court refused to allow the amendment proposed. Section 2990, Rev. Code, declares that “The attachment law must be liberally construed, to advance the manifest intent of the law; and the plaintiff, before or during the trial, must be permitted to amend any defect of form, in the affidavit, bond, or attachment; and no attachment must be dismissed for any defect in, or want of a bond, if the plaintiff, his agent, or attorney, is willing to give a sufficient bond.” The following are cases in which this court has construed the attachment law liberally, “ to advance the manifest intent of the law ”: Bruner v. Kinsell, 42 Ala. 498 ; Ware v. Todd, 1 [227] Ala. 199; Watts v. Womack, 44 Ala. 605 ; Hafley v. Patterson, 47 Ala. 271; Hawkins v. Gill, 6 Ala. 620. The case of Free v. Hukill, 44 Ala. 197, is a case of extreme liberality of construction ; perhaps, too liberal. The language of the statute requires much greater latitude and liberality in allowing amendments of bonds, than of affidavits and attachments. Speaking of the amendment of affidavits, this court, in Sims, Harrison & Co. v. Jacobson, 51 Ala. 186, announced as the result of our decisions, that in affidavits for attachments, the following are matters of substance : “ The existence of a debt, its amount, and that it is justly owing from the defendant to the plaintiff; that some one of the causes for which an attachment may issue exists; and a negation of a purpose to vex or harass the defendant. All else than these is mere matter of form. A misstatement of the amount, or character of the debt, or a misdescription of the plaintiff or defendant, would be, within the meaning of the statute, a matter of form, not of substance.” The present being an attachment for rent and advances, it is not required that the affidavit shall negative a purpose to vex or harass the defendant; while it is obvious that, in another respect, the affidavit must set forth another substantive averment, not required in ordinary attachments; namely, that the relation of landlord and tenant exists, and that the debt sued for is for “ rent on, and advances made to assist or aid in the cultivation of said land for the current year.” This is substance, and its omission from the affidavit is a fatal defect. Without this, there is no ground for attachment for rent, &c., under the statute. — Hawkins v. Gill, supra; Tucker v. Adams, 52 Ala. 254. The foregoing are rules governing attachments for rent, in suits originally brought in the Circuit Courts, or courts of similar jurisdiction. Under them, it is probable the motion for leave to amend ought to have been allowed. 2. But this was an appeal case from a justice’s judgment, where a different rule prevails. The Eevised Code (§ 3296) provides, that “ No attachment can be quashed or dismissed in the Circuit Court, for any defect of form in the affidavit, attachment, or bond, if the plaintiff is willing and able to execute a sufficient bond; and no objection can be made in the appellate court to the regularity of the proceedings, which was not made before the justice of the peace.” It does not appear that any objection was made before the justice of the peace to the regularity of the proceedings in this cause; and hence the motion to quash should not have been entertained. This precise question was considered and de [228] cided in Pelham & Paul v. Lebar, at December term, 1875.— See, also, Clough v. Johnson, 9 Ala. 425. Tbe judgment of the Circuit Court is reversed, and the cause remanded.