Bartlett v. Gaines

Wright, J. The motion to dissolve the attachment was properly overruled. The causes stated in said motion relate more to the sufficiency of the petition than to the affidavit, which was filed, and which, by the Code, section 1271, is made the basis of the attachment. Thus, it is objected that “ the petition fails to show upon its face any grounds for an [97] attachment.” And again, “that it does not bring the case within the statute authorizing a landlord’s attachment or lien.” Now the landlord may commence his action for his rent and lien without asking an attachment in his petition. If he desires the auxiliary writ, he is to make the affidavit provided for in section 1271, and that this was done in this instance there is no dispute. Upon the trial, defendant proposed to prove that a large portion of the rent for which the suit was brought, accrued and became due more than one year prior to the commencement of the action. No such issue as this was made by the pleadings. The defendant simply denied the indebtedness, but presented no issue to which this testimony was applicable. There was no error, therefore, in sustaining plaintiff’s objection to the testimony offered, either before or after the verdict. The jury was sworn to try the issue joined, and no more. When that issue was found in favor of plaintiff it remained with the court to pass upon those admitted. As there was no controversy then, so far as shown by the pleadings, but that plaintiff was entitled to his landlord’s lien, if the indebtedness of defendant was established, it was not error for the court to recognize the lien in the judgment and award a special execution, after the jury had found the indebtedness, without passing either way upon the question of lien. With this question the jury had nothing to do. Judgment affirmed.,