Paulhaus & Paul v. Leber

54 Ala. 91

• Court: Supreme Court of Alabama
• Decided: December 15, 1875
• Status: Published

Opinion

BRICKELL, C. J.

The justice of the peace properly allowed the affidavit for the attachment to be amended, so as to show the affiant was the agent or the attorney of the plaintiff in the writ. If the affidavit was defective as originally made, the defect was rather of form than of substance. R. C. § 2990.

On appeal or certiorari from the judgment of a justice of the peace, to the circuit court, the statute expressly requires the cause to be tried “ according to equity and justice, without regard to any defect in the summons or other proceedings before the justice.” — R. C. § 2772. Defects in an affidavit for attachment, or in the attachment sued out before a justice, are on appeal cured by the statute.—Clough v. Johnson, 9 Ala. 425; Perry v. Hurt, Corbin & Atkins, present term. No objection can be taken in the circuit court, on appeal, because the original process before the justice is sued out in the firm name of a partnership, not reciting the individual names of the several partners.—Condry v. Henley, 4 S. & P. 9; Snow v. Ray & Co., 2 Ala. 344; Ortez v. Jewett, 23 Ala. 662; Couch v. Robinson, 32 Ala. 633. The process would be more regular if it recited the individual names of tbe several partners, ancl tbe justice should always require tbem to be stated, but “this and all irregularities which embarrass a trial on the merits before the circuit court, the statute was intended to cure. Its object is a trial de novo in the circuit court on the merits, regarding the cause as introduced there by the appeal, and not looking behind it to irregularities occurring before the justice,”

The circuit court erred in sustaining the motion to qustsh the attachment, and its judgment is reversed and the cause remanded.