Wigs Bros. v. Ringemann , 155 Ala. 189 ( 1907 )

SIMPSON, J.

This was a statutory trial of the right of property, instituted by the appellee, who claimed certain property which had been levied on under an attachment sued out by the appellant against the Rodman-Ringemann Company. The writ of attachment was issued by the chancellor, the affidavits on the original attachment were produced in evidence, and the court gave the general affirmative charge in favor of the claimant. The only points insisted upon in the argument of counsel for appellant are, first, that in this action the claimant could not raise the objection to the validity of the attachment, on the ground that the chancellor had no authority under the statute to issue it; and, second, the attachment in this case was not void.

It has been definitely settled by our decisions that, while the claimant cannot raise any objection to mere irregularities in the proceedings under which the attachment writ was issued, yet he can defeat the plaintiff in the trial of the right of property, by showing that the original attachment was not merely voidable but void.— Jackson v. Bain, 74 Ala. 328, 330; Nordlinger v. Gordon, 72 Ala. 239; Taliaferro v. Lane, 23 Ala. 369, 375, 376. Section 524 of the Code of 1896 authorizes the issue of a writ of attachment by a chancellor only under subdivisions 3 and 4, to-wit, when the attachment is issued (3) “to recover damages for a breach of contract, when the damages are not certain or liquidated,” and (4) “when the action sounds in damages merely.” Section 529 does not make any change in the affidavit required in section 527, but only provides that, when the attachment is sought under subdivisions 3 and 4, “in addition” to this the plaintiff must “make affidavit in writing of the special facts and circumstances.” The special affidavit in this case does not show that the attachment was sought to recover damages for the breach of any contract, nor does it show an action sounding in damages merely, but merely an action for the conversion of property, which, according to the decisions of this court, was a moneyed demand. While the affidavit alleges that the defendant “unlawfully and wrongfully seized and carried away,” yet it proceeds, “and converted to their own use the said lumber.” In the action of trover, in modern practice, the manner of acquiring possession is immaterial, and may or may not be averred in the complaint. The gist of the action is conversion to the use of the defendant; and when that is alleged the action is trover, and all allegation as to the manner of acquiring the property will be treated as mere inducement or surplus-age. — 21 Ency. PI. & r. 1056, 1059, and note 3, 1060, 1061; Wells v. Connable, 188 Mass. 513. Consequently there was no authority in the chancellor to issue the writ of attachment in this case, and it was void. — Atkinson & Turner v. James, 96 Ala. 214, 216, 10 South. 846; Vann & Waugh v. Adams, Thorne & Co., 71 Ala. 475, 478; Nordlinger v. Gordon, supra; Taliaferro v. Lane, supra.

It results that the court correctly gave the general affirmative charge in favor of the claimant, and the judgment of the court is affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.