Harmon Bros. v. Jenks

CLOPTON, J. This suit originated in an attachmexit issued to enforce a landlord’s lien for rent. The defendants moved for a rule on the plaintiff to show cause why the attachment should not be dissolved, on the ground that it was sued out on a cause of action for which an attachment was not authorized by law, and that plaintiff did not have a lien as land-. lord on the goods levied on. The rule is well settled, that when an attachment is issued on a caxxse of action for which such process is not authorized by law — as when sued out by a landlord to enforce a lien for rent, on a demand ox- debt other than for rent — the remedy is by a rule on plaintiff to [77] 'show cause why it should not be dissolved. The motion made was proper, if the ground existed on which it was based — whether apparent from the face of the proceedings, or established by extrinsic evidence. The proceedings on the motion were irregular, and immaterial issues were presented by the replication to the plaintiff’s answer to the rule and by the rejoinder. The issues of fact thus joined were submitted to a jury who returned a verdict, under the instruction of the court, in favor of the plaintiff. A motion to dissolve an attachment is for the decision of the court, and not of the jury. If the defect does not appear from the proceedings, evidence may be received in support or discharge.of the rule, but the sufficiency of the evidence should be passed on by the court. Whether or not the defect appears from the proceedings, the court must determine the motion. The sole issue triable on the motion made by the defendants was, whether the attachment was sued out on a cause of action for which such process could lawfully issue. While the court may hear evidence relevant to this issue, it was irregular .to submit to a jury the trial of the issue. Extraneous evidence is only admissible for the purpose of showing the real nature and character of the demand— whether a claim for rent. If the claim arises from a rental contract, in the making of which the relation of landlord and tenant originated, the termination or dissolution of such relation by subsequent events and transactions is a question which does not arise, and the fact of indebtedness can not be 1 tried, on a motion to dissolve the attachment. It is immaterial whether the relation exists when the attachment is sued out, if such relation had previously existed.- — Bell v. Allen, 76 Ala. 150. The termination or dissolution of the relation during the term of the lease is pleadable in bar on the trial of the attachment suit, and of consequence, that there is no debt which can be recovered in that suit. — Tucker v. Adams, 52 Ala. 251; Adair v. Stone, 81 Ala. 113. The issue joined on the replication and rejoinder, that the relation had terminated, and that the rent passed to the defendants by the conveyance of the property by plaintiff to them during the term of the lease, and before the rent accrued, was an immaterial issue on the motion to dissolve the attachment, and should have been regarded by the court as frivolous. The result was to try the cause on a collateral issue. — Reiss v. Brady, 2 Cal. 132. It is undisputed that the note on which the attachment [78] issued was given for the rent of the store-house; that the relation of landlord and tenant was thereby created; and that the plaintiff had a lien on the goods for the rent. — Code of 1886, §§ 3069, 3070. If it were conceded that the relation was dissolved by the subsequent conveyance of the property to defendants, and that the claim for rent was thereby extinguished, these were questions which could only be properly raised and tried on pleas to the complaint. The issues on which the motion was tried being immaterial, and found against the defendants, no errors in the rulings of the court relating to them, will avail the defendants, or can be assigned. If the evidence, which was admitted to the jury, had been addressed to the court only, and its effect determined, as it was by the jury under the instruction of the court, the motion to dissolve the attachment should have been overruled on the undisputed facts, and the defendants put to their pleas in bar of the action. The judgment of the court refusing to dissolve the attachment is correct, though irregular and unauthorized proceedings may have been adopted and pursued by the consent of the parties, and immaterial issues tried on formal but superfluous pleadings, and redundant evidence. There is no error of which the defendants can complain. Affirmed.