Ballard v. Stephens

McCLELLAN, J. The judgment of the Circuit Court,, overruling the demurrer to the plea in abatement, can not be-reviewed on this appeal, for the reason that the demurrer is not set out, nor its substance in any wise made to appear in [618] the record. — 3 Brick. Digest, p. 405, § 13; Morris v. Beall, 85 Ala. 598. It sufficiently appears from the affidavit for attachment that the relation of landlord and tenant existed between the plaintiff and defendant; that the latter was indebted to the former in a sum certain, for the rent of laud for agricultural purposes ; and that he was about to remove the crop from the premises, or otherwise dispose of the same, without paying the rent, and without the consent of the landlord; and the affidavit is, therefore, a sufficient predicate for a writ of attachment for the collection of rent. — Code, §§ 3061 et seq. It also, however, embraces a claim for advances, as well as rent; and in respect to this claim the affidavit is manifestly bad, in that it does not set forth the nature or kind of articles advanced, whether live stock, necessary provisions, &c.; or even that the advances were made to enable the defendant to make a crop, or for the sustenance and well-being of the tenant or his family, &c. — Flexner v. Dickerson, 65 Ala. 129; Beard v. Woodard, 78 Ala. 317. The plea in abatement, so far as it was addressed to the claim for rents set up in the affidavit, was not well pleaded; but the objections made by it, with reference to the facts alleged as a basis for attachment for advances, were well taken; the affidavit, in other words, is good against the plea as to the one claim, and bad as to the other. The plea, on this state of case, should not have been sustained. What is alleged in the affidavit as to advances is, and is to be treated as, mere surplus-age, which, being eliminated, leaves a perfectly good affidavit for rent. — Drake on Attachment, § 105; 1 Am. & Eng. Encyc. of Law, ix 904. The judgment of the trial court, sustaining the plea and quashing the writ, must be reversed. Judgment is here rendered, overruling the plea, and remanding the cause to the Circuit Court, where it will proceed as upon a claim for rent only. Reversed, rendered in part, and remanded.