Mann Lumber Co. v. Bailey Iron Works

TYSON, C. J. The attachment in this case was sued out to enforce a blacksmith’s lien. — Sections 2753 and 2754 of the Code of 1896. . The pleader, in preparing the count of the complaint upon which the trial was had, set out in extenso in it as a bare recital the affidavit [601] upon which the writ of attachment was issued. The demurrer to the count and the motion to strike the affidavit from the file challenges the sufficiency of the statement of facts contained in the affidavit, as shown by the count. The incorporation of the affidavit by way of recital in the count did not make it a material averment of the complaint, descriptive of plaintiff’s cause of action. The affidavit ivas clearly mere surplusage, and was prop-rely so treated by the trial court. Therefore whether its statements were sufficient to withstand an attack by demurrer under the rule that obtains with respect to pleadings is wholly immaterial. Upon like consideration, the motion challenging the sufficiency of the affidavit, on the theory that it was a material part of the count, on the ground of defective allegation, was correctly overruled. Furthermore, motions to strike pleadings cannot, in this jurisdiction, perform the office of a demurrer. They can never be resorted to for the purpose of testing the sufficiency of the allegation of any pleading. It is only when a pleading is “unnecessarily prolix, irrelevant or frivolous, or unnecessarily repeated,” that it may be stricken on motion. — Section.5322 of the Code of 1907, and cases there cited. The other motion to strike the affidavit from the file proceeds upon the ground that the officer before whom it was made was disqualified by reason of his being of counsel for plaintiff. Whether or not such a disqualification exists in this jurisdiction was not presented, and could not be presented, by the motion. It might be conceded for the purposes of the discussion that the disqualification existed, and that its effect was to render the affidavit void, and therefore a nullity, and that this defect would be ground to abate the attachment, yet. the refusal of the court to entertain the motion is not a revisable error. — Rich v. Thornton, 69 Ala. 473. [602] In Burt v. Parish, 9 Ala. 211, it was said: “We have been long satisfied of the proper construction of the recent statutes, requiring the party to avail himself of the objection, if one exists, to the form of proceeding in the primary courts; and in accordance with this opinion we held in the recent- decision of Jones v. Pope, 6 Ala. 154, that the entire omission of a bond and affidavit must, to be available on error, be taken advantage of in the court below by plea in abatement. It is evident that defects in the affidavit or bond, however gross, cannot avail the party, if their entire omission cannot.” As supporting the proposition that a plea in abatement was the proper mode of raising the question of the validity of the affidavit or its sufficiency, see the following-cases : Johnston v. Hannah, 66 Ala. 127, and cases there cited; Wright v. Smith, 66 Ala. 545; Flexner v. Dickerson, 65 Ala. 129; Ballard v. Stephens, 92 Ala. 616, 8 South. 416. To the count the defendant interposed two pleas in bar. The first of these was the general issue. The second attempted to invoke the defense that the engine, upon Avhich the repairs were made by plaintiff and upon which the attachment was levied, was not subject to the lien for the repairs made upon it, because the defendant Avas engaged as a common carrier of freight and passengers for hire, and the engine was used by it for that purpose. On motion of plaintiff this plea Avas stricken as presenting- an immaterial issue. This ruling was correct. If the engine levied upon was not liable to the attachment because the plaintiff had no lien upon it for the repairs, the proper remedy was “a motion in the court beloAV to dissolve the attachment. — Brown v. Coats, 56 Ala. 439.” Johnson v. Hannah, 66 Ala. 127, 129. As said in Drakford v. Turk, 75 Ala. 339 : “When an attachment is sued out for a cause of action upon which [603] the statutes do not authorize its issue, the irregularity cannot he reached by a plea in abatement or by a motion to quash it. Such plea or motion is appropriate only to reach defects or irregularities apparent on the face of the affidavit, bond, or writ, and do not involve an inquiry into the nature or character of the cause of action. The appropriate method of reaching the objection that the writ will not lie for the enforcement of the particular cause of action is a rule upon the plaintiff to show cause against the dissolution of the writ and its levy; and the motion must precede a plea to its merits.” See, also, Rich v. Thornton, supra; Watson v. Auerbach, 57 Ala. 353; Adair v. Stone, 81 Ala. 116, 1 South. 768; Harmon v. Jenks, 84 Ala. 74, 4 South. 260. A plea to the merits was a waiver of the defense sought to be invoked by the plea under consideration, and left for the trial before the jury the simple question of indebtedness vel non. — Brown v. Coats, 56 Ala. 439; Watson v. Auerbach, supra; Giddens v. Bolling, 93 Ala. 92, 9 South. 427. The trial appears, from the bill of exceptions, to have been conducted by the trial judge in accordance with this view — correctly excluding all inquiry as to the ownership of the engine, the character of business in which the defendant was engaged, and the use to which the engine was put by defendant, etc. The memorandum account admitted in evidence against defendant’s objection was properly admitted to aid the memory of the jurors as to the testimony of the witnesses. Its correctness had been testified to without challenge. — Hirschfelder v. Levy, 69 Ala. 351; Roswald v. Hobbie, 85 Ala. 73, 4 South. 177, 7 Am. St. Rep. 23; Mooney v. Hough, 84 Ala. 80, 4 South. 19; Foster v. Smith, 104 Ala. 248, 16 South. 61. Under the testimony the trial court could well have given the general affirmative charge, with hypothesis, for the plaintiff, leaving to the jury the asceidaiument of the [604] amount of the indebtedness due plaintiff by defendant on account of the work and labor performed and material furnished in repairing the engine. It is therefore unnecessary to review the exceptions reserved to the oral charge of the court, or to review the correctness of its rulings with respect to written charges given for plaintiff or refused to defendant, since none of these rulings relate to or bear upon the only question to be determined by the jury. So much of the verdict as found that “plaintiff is entitled to a lien as claimed against the engine,” etc., and the judgment thereon, should be treated as surplusage. There is no statute which requires this finding in the enforcement of liens of this character, as is the case where the action is to enforce the lien of mechanic and materialman under section 4754 of the Code of 1907 and section 2723 of the Code of 1896. Where those liens are sought to be enforced, the defendant, by appropriate plea, may put in issue the fact of the existence of the lien, and when this is done the verdict of the jury must respond to the issue. — Section 4770 of Code of 1907; section 2739 of the Code of 1896. Finding no error in the record prejudicial to the appellant, the judgment appealed from must be affirmed.' Affirmed. Haralson, Simpson, and Dénson, JJ., concur.