Fuller v. Eames , 108 Ala. 464 ( 1895 )

HABALSON, J.

The papers in the attachment suit before the justice of the peace, were competent evidence to show that the plaintiff in this suit, had sued out said attachment, and sought thereby, to have the property sued for in this action as his, levied on and condemned in said attachment suit, as the property of defendant; that in that proceeding, he claimed that the property levied on was the defendant's, and in this, that it belongs to him. The bond and writ were in regular form. • The affidavit,' if defective as claimed, might have been reached by a motion to quash or by a plea in abatement, but it was not void. — 3 Brick. Dig. 55, §§ 37, 38. It was amendable for any defect of form or substance. Code., § 2998. Besides, these were the plaintiff’s papers, in his suit against defendant, and who but the defendant could object to their sufficiency? The plaintiff certainly could not. It was the fact of the recognition by plaintiff of defendant’s ownership of the property sued for, as evidenced by these attachment proceedings, and not their legality, that defendant sought to establish by the introduction of these papers, and they were the best evidence of the suing out and levy of said attachment. The evidence of the sheriff is uncontradicted that the plaintiff caused the levy to be made upon the property here sued for, by pointing it out to him as the property of the defendant.

Nor was there error in allowing the claim of exemptions filed by defendant in the justice’s court, along with the other papers in the attachment suit, to be introduced in evidence in this case. It was competent to show by the introduction of this as well as the other papers, that that suit was instituted on the assertion and claim by plaintiff, that the property was defendant’s, especially as the evidence shows, that after the filing of this paper, the plaintiff did not contest the claim of exemption, but dismissed the levy. It is stated, he dismissed the attachment, but that evidently means the levy, since there is no such thing as dismissing a suit out of court, in which a judgment or decree has been rendered, and still exists.

From what has been said it manifestly appears, that in this attachment proceeding, the plaintiff unequivocally recognized the property as defendant’s, and sought to subject it in a manner, wholly inconsistent with the retention of title in himself, when he sold the property to defendant. He thereby waived any title he might have had to the property, and could not afterwards institute this suit maintainable only on the theory of title in himself. — Thomason v. Lewis, 103 Ala. 426 ; Montgomery Iron Works v. Smith, 98 Ala. 644 ; Lehman, Durr & Co. v. Van Winkle, 92 Ala. 443 ; Tanner v. Hale, 89 Ala. 628.

There was no error in giving the general charge for the appellee.

Affirmed.