Alford v. Colson , 8 Ala. 550 ( 1845 )

COLLIER, C. J.

If at any time the Circuit Court should have entertained a motion to dismiss, for a defect in the affidavit by which the claim of property was interposed before the justice, it was certainly too late after one or more continuances of the cause, subsequent to the appearance of the parties. This point has been repeatedly so ruled in analagous cases.

If the slave was the property of Whippel, the claim should have been interposed in his name. But instead of thus proceeding, the defendant in execution declares that he held the slave as the agent of Whippel, and the statement of the case before the justice, as well as the petition for a' certiorari, and bond consequent thereon, show that in the character of agent, he was the claimant. Conceding that Alford’s possession was, as he affirms in his affidavit, and still his principal should have been the party litigant, instead of himself.

It was clearly competent for the Court to have looked into the case, and if it appeared that the claim was made by an improper person, to have dismissed it on motion. This course could not have been productive of injury to any one; for if the cause had been tried upon an issue to the jury, and a verdict returned for Alford, as agent, &e. the judgment must have been arrested. The fact that a writ of error bond was executed by Whippel, and a writ of error applied for by. him, as the condition recites, can have no effect upon the case.

We have extensive powers in .respect to the amendment- of writs of error, so as to adapt them to the transcripts they are intended to remove. But here, there is no want of conformity of one to the other, and consequently no occasion for the exercise of the power.

It has been shown, that although the claim could not have been dismissed for a defect in the affidavit merely, yet it was properly disposed of, because the claimant was also the defendant in execution, and if, as agent, he could have made the necessary affidavit and executed the bond, yet the proceeding should have been in the name of his principal, and thus progressed to the close. The consequence is, that the judgment must be affirmed.