Adair v. Stone , 81 Ala. 113 ( 1886 )

SOMERVILLE, J.

— The first assignment of error is based upon the action of the court in overruling appellant’s motion to strike “ the amended complaint ” from the file. If we construe this (most favorably to appellant;) to mean the amendment to the original complaint, we can not see from the judgment entry, or bill of exceptions, which of the counts were added by way of amendment, and therefore the motion was properly overruled if any one of the new counts was good, and properly joined with the original complaint. It is not insisted, nor can be, that all of the new counts were bad or improperly joined. Without passing on the question as to whether the mode adopted to reach the supposed defect was the proper one, we hold that the record shows no error in the ruling of the court.

2. The demurrer to the amended complaint not being set out in the record, we can not say that the court erred in overruling it.

3. When an attachment is improperly sued out upon a cause of action not within the class of cases in which this extraordinary process is authorized by statute to issue, the irregularity can, under our practice, be reached only by a rule on the plaintiff, to show cause why the writ of attachment should not be dissolved. Neither a plea in abatement, motion to quash, nor motion to strike out, will reach the defect. — Drakeford v. Turk, 75 Ala. 339; Rich v. Thornton, 69 Ala. 473; Dryer v. Abercrombie, 57 Ala. 497; Brown v. Coats, 56 Ala. 439.

We need not pass on the demurrers to the second, third and fourth pleas, as they do not seem to have been framed with reference to the amended complaint, and the judgment must be reversed for another reason.

4. The evidence proposed to be introduced by the defendant tended to show that he held the lands, for which the plaintiff claimed rent, as a purchaser, and not as a tenant, or by way of use and occupation. This in no manner sought to assail the regularity of the attachment, nor to raise any question as to the propriety oí the remedy of attachment, as a legal mode of enforcing the alleged contract. The evidence went to the merits of the claim sued on, by denying the essential averments of the complaint itself. It tended to support defendant’s fifth plea, to which no demurrer was interposed, and the court erred in excluding it from the jury. — Tuclcer v. Adams, 52 Ala. 254, 258.

Reversed and remanded.