McAbee v. Parker , 78 Ala. 573 ( 1885 )

SOMERVILLE, J.

The suit is one commenced by attachment, which was levied on certain described lands of the defendant, and the judgment taken in the cause was by default.

1. The first objection urged is, that the record fails to show that the defendant resided in the county of Blount, and that the judgment can not be supported in the absence of this affirmative showing by the sheriff’s return. Section 3260 of the Code of 1876 provides, that notice of the levy of the attachment shall be given by the officer making the levy, by leaving a written notice at the residence of the defendant, if he is resident of the county. The return of the sheriff shows that he gave the requisite notice, in writing, left at the residence of the defendant. The presumption is always in favor of the correctness of an officer’s return, unless inconsistent with the manifest probabilities of the case.- — Best on Ev. (Morgan’s ed.), § 359. This is generally a rule of convenience, and often one .of necessity, and is based on the reasonable presumption, that a sworn officer of the law has rightly discharged his duty. Drake on Attach. (6th ed.), § 210 \ Clark v. Gray, 11 Ala. 98; King v. Bucks, 11 Ala. 217. Upon the same principle that the court will assume that property levied on belongs to the defendant, though not so expressly affirmed in the officer’s return, it will likewise assume that the defendant was a resident of the county, in order that the levy may be sustained, and the judgment supported. — 1 Brick. Dig. p. 161, § 94. This is not in conflict with the principle settled in Brinsfield v. Austin, 39 Ala. 227, where it is held that, to sustain a judgment by default against a non-resident, commenced by attachment, the record must affirmatively show publication was made as required by statute in such cases. No return of a sheriff, or other sworn officer, was involved as to its verity in the latter case. The assignment of error based on this supposed defect is not well taken.

2. The variance between the amount of the debt claimed in the affidavit, and that stated in the complaint, can not be raised on appeal for the first time in this court. It could probably be raised only by plea in abatement in the primary court,— a mode shown not to have been resorted to in this case. Wright v. Snedicor, 46 Ala. 92, and cases cited; Odom v. Shackleford, 44 Ala. 331; Roberts v. Burke, 6 Ala. 348; Drake on Attach. (5th ed.), § 36.

3. It would seem, even were the point properly raised, that there was no error in refusing to allow Ilamill and Copeland, who were strangers to this proceeding, to intervene for the purpose of protecting any interest which they may have acquired pendente Hie in the land levied on by attachment. Their rights, if any, were acquired after the levy of the attachment, and they were neither proper nor necessary parties to the suit. The rule seems to be settled, that mere strangers, who are neither parties to the suit, nor privies to the process, can not intervene in attachment proceedings, to move a dissolution or vacation of the levy, or to interpose other like defense. — May v. Combray, 47 Ala. 185 ; Rea v. Longstreet, 54 Ala. 291.

4. But, however this may be, the defendant in attachment was not prejudiced by the action of the court in refusing to allow these strangers to intervene, and can base no assignment of error on it. The point, moreover, could be presented only by bill of exceptions, and there is none in the record.

Judgment affirmed.