Wright v. Dubose

84 So. 432, 17 Ala. App. 207, 1919 Ala. App. LEXIS 203

• Court: Alabama Court of Appeals
• Decided: October 28, 1919
• Docket: 4 Div. 594.
• Status: Published

Opinion

BRICKEN, J.

[1] For want of assignment of errors upon the part of appellant, this cause was affirmed on May 13, 1919. However, upon proper motion and showing to this court, the judgment of affirmance was set aside on June 12, 1919, and assignments of errors allowed' to be made.

This was an attachment suit by appellant, plaintiff in the court below, against appellee (defendant), to enforce a lien for rent. The attachment writ was directed generally against the estate of the defendant, but was levied only on the crops. The court allowed the plaintiff to amend the affidavit so as to show the relation of landlord and tenant,, but denied plaintiff the right to amend the attachment writ so as to have it directed against the crops instead of the estate generally, and, on motion of the defendant, dismissed the attachment.

[2] The court erred .in refusing to allow plaintiff to amend the attachment writ. The statute expressly gives him this right. Code 1907, § 2965. This statute allows amendments as a matter of right, which do not entirely change the parties, or the su'bject-matter; and it has been expressly held that an attachment issued against the estate can be amended so as to be against the crop. Sloan v. Hudson, Adm’x, 119 Ala. 27, 24 South. 458; Webb & Stagg v. McPherson & Co., 142 Ala. 540, 38 South. 1009; Savage v. Atkins & Co., 124 Ala. 378, 27 South. 514.

[3] The court also erred in dismissing the attachment. The writ, being directed against the estate, and not against the crops, was not void, but irregular. Had it been levied on property other than the crops, it could have been abated as to such property. Ellis v. Martin, 60 Ala. 394.

For the errors pointed out, the judgment of the circuit court is reversed, and the cause remanded.

Reversed and remanded.