Busbin v. Ware

69 Ala. 279

• Court: Supreme Court of Alabama
• Decided: December 15, 1881
• Status: Published

Opinion

SOMERVILLE, J.

A motion to quash an affidavit for defects apparent on the face of it, or a motion to quash a writ of .-attachment for similar defects or irregularities, if made within the time prescribed for pleading in abatement, is addressed to the sound discretion of the court, and may be entertained accordingly; or it may be refused and the party malting the motion put to his plea, as the court may elect.

The motion to quash in this case was properly allowed under the authority of De Bardeleben v. Crosby, 53 Ala. 363. It seems to hav'e been made at the first term at which it could have been made, as required by the 13th Buie of Practice (Code, 1876, p. 160), and the affidavit was defective in failing to aver that the contemplated removal of the crop from the premises .of the landlord was without Ms consent. The statute, in our opinion, requires the consent of the landlord, or of his assignee, to be negatived, whether the averment is that the removal of the crop is about to be made by the tenant, or whether it has already taken place. — Code, 1876, § 3472; De Bardeleben v. Crosby, supra.

Judgment affirmed.