Cofer v. Reinschmidt , 121 Ala. 252 ( 1898 )

TYSON, J.

— This appeal is prosecuted by the claimant from a judgment rendered against him in the circuit court in a claim suit for the trial of the right of certain personal property levied upon bj a writ of attachment sued out by the plaintiff against the defendant in attachment for the enforcement of a lien for rent alleged to be due to the defendant as his tenant. The attachment and claim suits originated in a justice court and were tried there at the same time and only one judgment was rendered by the justice. It appears from his judgment entry that after ascertaining that the defendant was in default, he proceeded to judgment against him by default and then condemned the property to the satisfaction of plaintiff’s writ of attachment presumably against the claimant. We say presumably for the reason that it does not appear from his transcript of the proceedings in the case that the claimant ■was present and litigated with the plaintiff the question of their respective claims to the property. It does appear that this must have been true for the reason, that the bond of the claimant was declared forfeited by the officer as required by section 3368 of' the Code of 1886. After the five days had elapsed within which the claimant could prosecute his appeal from this judgment, the claimant sued out a writ of certiorari under the statute for the purpose of having the trial and judgment of the justice of the peace annulled and the cause removed to the circuit court and there tried de novo.

The first question presented for decision arises upon the rulings of the court upon the sufficiency of the claimant’s plea in abatement alleging the death of the defendant in attachment since the suing out of the writ oí certiorari, and the failure to revive the suit against bis personal representative within eighteen months after his death as required by section 2603 of the Code of 1886. Independent of the effect of the action of the justice in trying the attachment suit against the defendant before or contemporaneously with the trial of the claim,suit upon the judgment rendered by him in violation of the mandate of the statute requiring the claim suit to he first tried (Code 1886, § § 3012, 3013; Abraham v. Nicrosi, 87 Ala. 178), the writ of certiorari operated, under the peculiar facts of this case, to annul the entire judgment and to transfer the causes to the circuit court to be tried de novo, just as an appeal in each would have done. — 3 Brick. Dig. 591, § 42.

As between the plaintiff and the claimant the issue to be tried was whether the property upon Avhich the ■writ of attachment was levied, was the property of the defendant in attachment upon which the plaintiff had a lien for rent and leviable to the satisfaction of the writ of attachment, and the burden was upon the plaintiff to establish these facts. — Code 1886, § § 3005, 3006, 3012; see also Code 1896 and authorities noted under it. As said in Seisel & Co. v. Folmar & Sons, 103 Ala. 494, “It is a controlling principle in the statutory trial of the right of property, levied upon by attachment o.r execution, that the claimant must recover on the strength of his own title; not because of the weakness or want of title in the defendant in the process.” Nor can the plaintiff be permitted to recover upon the weakness of the title of the claimant, unless he shows the property to be the property of the defendant, and subject to his attachment and, in the case under consideration, the additional fact that he had a lien upon it for rent due him by the defendant. It was a matter of no concern to him if he had no lien as landlord, whose property it was, if it did not belong to the defendant.—Dryer v. Abercrombie, 57 Ala. 497; Allison v. Pattison, 96 Ala. 159.

We have stated the issues for the purpose of determining the inquiry here involved as it grows out of the nature and character of a claim suit under our statutes. It has its origin in the making of an affidavit by a stranger to the writ of attachment or other process levied upon personal property, claiming the property and giving a bond payable to the plaintiff in the writ conditioned to deliver the property for the satisfaction of the plaintiff’s claim, if it be found liable therefor.— Code 1896, § 4141, (Code 1886, § § 3004, 3012, 3014, 3365); McAdams v. Beard and Henderson, 34 Ala. 478; Lassiter v. The State for use etc., 106 Ala. 292. After .the making of the affidavit and the giving of the bond, the plaintiff in the process becomes the actor, and, as we have said, on him rests the burden of proving the affirmative fact asserted by the levy of the process and in case of attachment to enforce a statutory lien, the existence of that lien and of necessity a valid debt against the defendant in attachment. As said by Walker, O. J. in McAdams v. Beard, “The trial of the right of property, under our statutes is a proceeding altogether sui generis. There is no precedent for it known to ns in the English law.” It is not an independent suit, but derives its existence out of the pendency of the attachment suit. Without the issue and levy of the writ of attachment, no such suit could possibly come into being. As said in the case of Jackson v. Bain, 74 Ala. 328, “Soon after the attachment was levied, Bain, the ap-pellee, interposed a claim to the property levied on. He filed his affidavit of ownership and executed the necessary claim bond to institute the statutory action, known in our jurisprudence as a trial of the right of property. This is not an independent suit which parties may inaugurate in the first instance. It is statutory and consequential in its nature.” Proceeding with a discussion of other questions not necessary here to note, the learned justice, after showing the burden of proof to be upon the plaintiff, said further: “The attachment in this case being void, it had no greater validity than if no attempt had been made to issue it. The claimant can take advantage of it, because it is void — not merely irregular. He can take advantage of it, because it is the first and fundamental evidence of plaintiff’s right, without which he cannot recover. Being void, the first step cannot be taken, in showing a prima facie right of recovery. He falls before he reaches the adversary’s out-worlcs.” If his writ be regular what becomes of his attack upon his adversary should it be shown that he has no valid enforceable demand to support bis lien against the defendant in attachment at the time of the trial? Suppose the defendant had paid his rent to the plaintiff after the institution of the' claim suit or suppose the plaintiff had dismissed his attachment against the defendant after the institution of the claim suit? We do not apprehend there can he a serious controversy that if either of these supposititious facts had actually existed, that the claimant could invoke either of them to defeat the suit against him. The claim suit being consequential and dependent upon the main, independent attachment suit, can no more stand unsupported and alone than it could have come into being without the previous and contemporaneous existence of the attachment suit. Besides the statute (Code 1886, § 30IB) expressly provides that “when property levied on under an attachment and delivered to claimant, is not by the claimant delivered to the sheriff within thirty days after judgment against him, the sheriff must return the bond-forfeited; and upon the recovery of judgment by the planitiff against the defendant in attachment, execution must be issued upon such forfeited bond within the time required for the issue of executions on judgments.” It is too clear from this lhnguage, to require argument, that even though there is a judgment against the claimant he cannot be required to deliver the property, under the conditions of his bond, until the plaintiff had obtained a judgment against the defendant. This, of course, could not be done if he is dead, without a revivor of the attachment against his personal representative within eighteen (now twelve) months after his death.

These considerations to our mind are conclusive that the claimant had the right to interpose the defense, that the. action had abated as against him on account of the failure of the .plaintiff to revive the attachment suit within the period prescribed- by the statute against the personal representative of the defendant.

There are many other assignments of error based upon the rulings of thé court upon the introduction and exclusion of evidence during the trial to which exceptions were reserved by the claimant, but as the point upon which the cause is reversed, is conclusive against the right of plaintiff to further prosecute the suit, if it is a fact that the defendant has been dead for more than eighteen months, we do not think it necessary to review them.1 •

Reversed and remanded.