Richards v. Bestor

90 Ala. 352

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

OLOPTON, J.-

This suit was commenced by attachment sued out under sections 3069-3073 of the Code, to enforce a landlord’s lien for rent of a store-house. A portion of the goods levied on having been claimed by a third person, defendants objected to proceeding with the trial, until the question of the right of property was settled. Goods had been levied on to which no claim had been interposed. The statute declares : “No judgment can be rendered against the defendantin attachment, when a claim has been interposed to try the right-of property, until that question is settled; unless other property or effects of the defendant be attached or garnished, about which no contest has arisen.” The court did not err in requiring defendant to proceed with the trial. — Code, § 3000.

Plaintiff was permitted, against the objection of the defendant, to amend the affidavit on which the attachment was obtained, in matter of substance. Section 2928, which re-’ lates to attachment suits in general, provides : u The attachment law must be liberally construed to advance the manifest intent of the law; and the plaintiff, before or during the trial, must be permitted to amend any defect of form or substance in the affidavit, bond or attachment.” And section 3073 declares : “ The law governing the issue, levy, trial and other proceedings in attachment suits in general, not inconsistent with the provisions of this article, shall govern in all cases arising under this article.” The right of the plaintiff to amend the affidavit is manifest from a comparison of these sections.

The demurrer to the plea in abatement was properly sustained, for the reason that the affidavit, as amended, substantially conformed to the statutory requirements; and for the further reason, that defendants did not crave oyer of the affidavit and writ of attachment, and set them out in the plea. Tommey v. Gamble, 66 Ala. 469.

The objection of defendants to the introduction in evidence of the lease was general, no ground of objection having been stated. The specific objection now urged is, a variance between the complaint and the lease, as to the description of the locality of the store. A general objection is sufficient, when the evidence offered is, upon its face, illegal or irrelevant. Pool v. Davis, 36 Ala. 672. But, when its illegality or incompetency appears only by reference to some extrinsic fact, the ground of objection should be stated. As the variance could only be shown by a comparison of the pleadings and the lease, the mind of the court should have been directed to it by a specific objection. The court is not bound to institute a search for the ground of objection resting in the mind of the counsel; and if the party objecting does not particularize, the objection may with propriety be disregarded. Had it been stated, an amendment of the pleadings, if necessary to obviate it, could have been made.—Dryer v. Lewis, 57 Ala. 551; Steele v. Tutwiler, Ib. 113; Lecroy v. Wiggins, 31 Ala. 13.

The lease contained a stipulation, that tlie defendants should “ be taxed with attorney’s fees, in the event of the employment of an attorney on account of the violation of any of the conditions of the lease by them.” Under this stipulation, plaintiff was entitled to recover reasonable attorney’s fees, which are regarded as part consideration for the rent. The collection of the same may be enforced in the attachment suit.—Johnson v. Durner, 7 So. Rep. 245; 88 Ala. 580.

Affirmed.