Mitchell v. Lawrence , 123 Ala. 498 ( 1898 )

DOWDELL, J.

As stated by counsel "in argument, there is but one question presented by the record in this case, and that is, whether a. justice of the peace has the authority to issue an attachment returnable before another justice.

Attachment proceedings are the creation of the statute, and to the statute we must look for the power and authority, not only to-issue the writ, but also to determine all matters subsequent to the issue, and pertaining to and regulating the execution and return of the same. The several sections contained in the Code relating to issuance of attachments must be construed in pari materia. Chapter II of the Code, p. 238, which relates to-attachments, is subdivided into articles from 1 to 6, in-elusive. Section 526 under article 1, prescribes by what officers attachments may be issued, and includes justices of the peace, but it cannot be doubted that this section relates to attachments returnable to the circuit court or court of like jurisdiction. This is made manifest by the provisions contained in article 6 of the same chapter, page 254, which pertain exclusively to proceedings in attachment before justices of the peace and in causes within the jurisdiction of such courts.

The caption to article 6 is, “Attachments issued by Justices of the Peace.” The several sections contained in this article provide not only for the issuance of the writ, but also for all proceedings had under it. Section 571 provides as folloAvs: “Justices of the peace have poAver to issue attachments, returnable before themselves, where the amount claimed does not exceed one hundred dollars, for the enforcement of the debts or demands, and in the cases mentioned in sections 524 and 525.” If the language employed in the statute had been in the singular instead of the plural, that is, “a justice of the peace has the poAver to issue an attachment returnable before himself” etc.j it could not then be questioned, that the power to issue returnable before another justice would be wanting. We do not think that the mere employment in the statute of the plural number, justices,-, instead of the singular, justice, Avould authorize a different construction from that which Avould be •given, if the singular had been employed. The natural import and meaning, and the reasonable construction of the language-“returnable before themselves,” is, returnable before the one issuing the writ.

Sections 2710 and 2717 Avhich relate to the enforcement of the lien of landlords by attachment, are to be construed in connection Avith the statutes we have been considering above, in respect to the issuance and return of such writs. There is nothing in these two sections from which it could be intended, that it Avas the purpose of the legislature to authorize a justice of the peace in attachment for the collection of rent, to issue the writ returnable before another justice, Avhen it could not be done in other attachment proceedings under the statute. Indeed, in section 2710, it is provided among other things, that the cause “must he tried in the same manner etc., as other attachment causes are tried;” clearly indicating an intention not to change any rule of practice- or pleading.

Onr conclusion, therefore, is, that a justice of the peace has no authority to issue an attachment returnable before another justice; and the defendant’s motion to quash should have been sustained. For the error in overruling the motion the judgment of the court.below must reversed and the cause remanded.

Reversed and remanded.