Witherington v. Gainer

43 So. 117, 149 Ala. 655, 1907 Ala. LEXIS 286

• Court: Supreme Court of Alabama
• Decided: February 14, 1907
• Status: Published

Opinion

HARALSON, J. —

The amendment of; section 41.45 of the Code of 1896 provides,, that “when the claim interposed is based on a mortgage or lien, the claimant must state in liis affidavit, the nature, of the right Avhich he claims,” etc. — Acts 1900-01, p. 106.

The claims filed in these cases, filed by the claimant, do not state the nature of the right Avhich he sets up, but state, that the property upon Avhich the atachment Avas levied is- not the property of the defendant in attachment, but is tlie property of-the affiant (claimant), and that- he has a just claim thereto.

At'the time of the trial, and after it had been entered upon the claimant sought to cure any defect in his claim in each of the cases,, by making neAV affidavit?, -bv Avaiy of amendments of his affidavits to claims, conforming them to the statute and moved the court to alloAV them, which motion the court oArerruled and claimant excepted. The appeal is to reverse these .rulings.-

The original affidavits Avere sufficient to give the court jurisdiction of the claim .suits.- The-'amendment of the affidavits to the claims in these cases, sought to set forth the nature of the plaintiff’s claims to the- property, and Ave feel constrained to- hold, that they Avere admissible for this purpose, and to- meet' the evidence in the case. The amended affidavits should have been allowed, and the court erred in refusing to alloAV them to be made. — Cade v. Floyd, 120 Ala. 484, 492, 24 South. 944; Rhodes v. Smith, 66 Ala. 177, 178.

Reversed and remanded.

Tyyson, C. J., and Simpson and Denson, JJ., concur.