Dansby v. Johnson ex rel. Gresham , 3 Ala. 390 ( 1842 )

COLLIER, C. J.

The act of 1837, which provides for the issuance of an attachment in certain cases, as ancillary to an action already commenced, was intended to provide an additional means for the security of the creditor. The irregularity of the attachment, or the proceedings upon it, cannot affect the plaintiff, if his suit has in other respects, been regularly prosecuted to judgment. It is entirely competent for him to renounce all the benefit which might have been derived from the attachment, and replevy bond, and take the chances of satisfying his judgment by executing such property of the debtor as may be found. This being the law, the question is, can an execution be issued on the judgment at the suit of the plaintiff below? Although there is no statement of the names of the parties in connection with the entry of judgment,.yet we think it clear, that the recitals contained in it, must be held to refer to the cause as then pending in the Circuit Court; the contrary supposition proceeds upon the idea that the attachment, instead of being assistant process, was in itself a distinct suit — an idea, as we have already seen, not well founded.

If the replevy bond executed upon the levy of the attachment, cannot have the effect (upon being returned forfeited) of a judgment, so as to warrant the issuance of an execution, the law will afford to the obligors an ample protection, either by superseding or injoining it.

The judgment is free from error, and consequently affirmed.