Savage v. Atkins Co.

124 Ala. 378

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

SHARPE, J.

— The affidavit upon which the attachment was issued was not void for Avant of subscription by the affiant. — Watts v. Womack, 44 Ala. 605. It Avas however irregular and insufficient in that respect because of the requirement of section 527 of the Code that the affidavit in such cases be subscribed by the party making it. Section 564 of the Code provides that “the plaintiff before or during the trial must be permitted to amend any defect of form or of substance in the affidavit bond or attachment; and no attachment must be dismissed for any defect in the affidavit if the plaintiff, his agent or attorney will make a sufficient affidavit” etc. Under this provision the amendment to the affidavit was properly allowed, and by it the defect which formed the only basis for the motion to quash the attachment and for one of the pleas in abatement, was cured.

• The judgment entry recites that “the defendant’s plea in abatement having been heard by the court it is adjudged that the same is overruled.” There is no bill of exceptions and the record before us leaves it uncertain whether this recital is in reference to the plea setting up insufficiency of the affidavit or to that averring the pendency of a former suit, and the issue or evidence upon which the court acted in making the order is not disclosed. If the judgment purporting to overrule the plea had effect to require the defendant to answer over, still it is not shown to involve reversible error..

There is nothing to show that the defendant objected or excepted to the granting of the rule nisi to the justice of the peace or that any proceedings were had thereunder to his prejudice.

The judgment will be affirmed.