DeBardeleben v. Crosby , 53 Ala. 363 ( 1875 )

BRICKELL, C. J.

1. Defects and irregularities in a writ of attachment, or apparent on the face of the affidavit or bond, may be taken advantage of, by motion to quash, if the motion is interposed within the time prescribed for pleading in abatement. P. &. M. Bank v. Andrews, 8 Por. 404; Hall v. Brazleton, 40 Ala. 406; Farmer v. McCraw, 31 Ala. 659, Rule 13, R. C. 821. The motion is addressed to the sound discretion of the court, and may be entertained or refused, and the party put to his plea, as the court may elect. An exercise of the discretion, is not revisable. Ellison v. Mounts, 12 Ala. 472.

2. The attachment was sued out, under the provisions of the Code, giving a landlord a lien on the crop grown on the rented premises, for the rent for the current year, and entitling him to process of attachment to enforce it, when the tenant has removed, or is about removing, without his consent, the crop or any portion thereof from the premises, the rent being unpaid. Of the facts affidavit must be made, stating the amount of the rent and bond given as in other cases. The attachment is to be levied on the crop. R. C. §§ 2961, 2963. The whole of the statute, is to ere-ate a lien in favoi of landlords, on crops grown on rented lands, and to provide an efficient remedy for the enforcement. It was not intended to give tbe landlord, in any other respect, or in respect to any other property, priority over other creditors of the tenant, or to authorize him to resort to the process of attachment, in any other case, when they were not entitled to a like remedy. Hawkins v. Gill, 6 Ala. 620. The attachment should properly specify that it is leviable only on the crop grown on the premises. We do not say, if it issues generally, not expressing that it was leviable only of the crop, that it would be so irregular or defective, as to be abatable or subject to a motion to quash. But if it should be levied on other property, the levy would on motion be set aside, and the property discharged.

3. The affidavit for the attachment was not sufficient. It does not disclose the year for which the rent was due or accruing. It is only the rent for the current year, for which a lien exists, capable of enforcement by attachment. It does not state that the lands had been rented of the plaintiff, nor that the removal of the crop was without his consent. The last fact, if it be a fact, should have been distinctly affirmed. The consent of the landlord to the removal of the crop, or of the part about being removed, relieves the tenant from liability to this remedy. Therefore the fact of consent should be positively negatived in the affidavit. The judgment of the circuit court, quashing the attachment, is affirmed.