Massey v. Walker , 8 Ala. 167 ( 1845 )

GOLDTHWAITE, J.

— All the questions made in this case, may be briefly disposed of.

1. As to the refusal to quash the attachment, that is not a matter which is proper to be examined on error. At best, this is a motion which the Court may entertain, but cannot be controlled to do so. [Reynolds v. Bell, 3 Ala. Rep. 57.]

2. Our statutes which authorize attachments as ancillary to causes already depending, make no distinction between suits commenced by bailable process, and suits commenced in the ordinary mode. In either class, we consider the attachment proper, if the statutory course for suing it out is shown. This conclusion is decisive of any supposed merit in the second plea in abatement, to which the demurrer was properly sustained.

3. In relation to the issue growing out of the other plea, it is entirely immaterial what it was, or whether formed, to the Court or jury, as in either case it would have availed the defendant nothing. But in point of form the proper issue was nul tiel record, and although we do not know what was shown to the Court, as evidence, wo would presume error in a case where the matter was material, that the evidence supported the plea.

Rice, for the motion,

cited, Daniels v. Wilcox, 2 Root, 346 ; Bradley v. Allen, 3 Mass. 561; 3 Ala. Rep. 57, 250, 363; 4 ib. 393, 687.

4. The proper judgment upon a demurrer to a plea in abatement, when the demurrer is sustained, is one of respondeas ouster, but in point of practice with us, no formal judgment is, in general entered ; the mode generally is, to notice the sustaining of the demurrer, upon the judgment entry, as in this case. If the defendant wishes to plead over, he does so; if otherwise, there is no injury done. Here no formal judgment is rendered on the demurrer ; the final judgment in this cause is only rendered upon the failure to plead further.

We can see no error in the record. Judgment affirmed.

Afterwards, at another day in Court, a mandamus was moved for, on behalf of Massey, to direct the Circuit Court to set aside the ancillary attachment in this case, on the ground that at the time of its issuance and levy, the defendant was in custody under the bail writ. An affidavit was submitted, showing that Massey had never been discharged legally from the arrest, and the record of the case showed, that the motion to quash the attachment had been made and refused in the Circuit Court.

GOLDTHWAITE, J. — The statute under which the attachment in this case was sued out, provides, that whenever a suit shall be commenced in any Circuit or County Court of this State, and the defendants, or any one or more of them, shall abscond, or secrete him, her, or themselves,or shall remove out of this State, or be about to remove out of this State, or shall be about to remove his, her or their property out of this State, or be about to dispose of his, her or their property fraudulently with intent to avoid the payment of the debt or demand sued for; and oath being made, &c., an attachment may issue, and when returned, the same shall constitute a part of the papers in the original suit, which may proceed to judgment as in other cases. [Clay’s Dig. 62, § 35.]

The object of this enactment was to give the process of attachment, when any one of the enumerated causes for its issu-anee might exist; and we can see nothing in it which limits its provisions to cases where the defendant has not been held to bail. We have held, it is true, that an ancillary attachment can not be sued out in an action of detinue, because no original attachment can be issued for such a cause of action. [Le Baron v. James, 4 Ala. Rep. 687.] But here the cause of action is such as would support an original attachment, being a liquidated debt; and therefore the ancillary one is proper, unless the previous arrest on the bailable process prevents it. In our opinion, this docs not, The arrest on bailable process, has only a very remote analogy to the final process by ca. sa., where the reason for the discharge from arrest, if a sufficient levy is made, is, that there is a quasi satisfaction by the levy; but, even in that case, we presume, a Court would require very satisfactory proof, that the levy would be productive, before it would allow the defendant to be discharged. When the process, however, is under this statute, we think there is no pretence to discharge the levy of the attachment, whatever the proceedings might be affecting the person of the debtor.

Motion refused.