Robinson & Ledyard v. Holt

85 Ala. 596

• Court: Supreme Court of Alabama
• Decided: December 15, 1888
• Status: Published

Opinion

STONE, C. J.

We feel constrained to affirm the judgment of the Circuit Court in this case. The affidavit for attachment is fatally defective in substance. It avers a failure to pay rent, and for the advances, after they had matured, but fails to aver that demand had been made. It avers that the crop, or a part of it, had been removed from the place or premises without paying the rent and advances, but fails to negative the consent of the landlord. — Code of 1876, § 3472; Code of 1886, § 3061; Fitzsimmons v. Howard, 69 Ala. 590; Bell v. Allen, 76 Ala. 450.

The attachment was sued out in November, 1887, before the Code of 1886 went into effect. After December 25, 1887, when that Code became the law of the State, plaintiffs asked, leave to amend the affidavit, by supplying tbe omissions above pointed out. — Code o£ 1886, § 2998. The court did not err in denying tbis motion. — Code o£ 1886, § 10; State v. McBride, 76 Ala. 51. That section expressly declares, “Tbis Code shall not affect any existing right, remedy, or defense.” It emphasizes tbis provision by adding: “As to all such cases, the laws in force at tbe adoption of tbis Code shall continue in force.” Both tbe right and tbe remedy were in existence at that time; and hence were not affected by tbe change in section 2998 (8315).

Affirmed.