Opinion
4 Div. 988.
April 20, 1922.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Boswell Ward, of Geneva, for appellant.
The court erred in refusing to dismiss the attachment and the levy. Section 2961, Code 1907; 10 Ala. App. 613, 65 So. 678. Counsel discuss the motion to tax plaintiff with the cost, but they cite no authorities in support thereof.
H. Grady Tiller, of Geneva, for appellee.
The court properly denied appellant's motion to abate. 85 Ala. 137, 4 So. 752; 97 Ala. 528, 12 So. 41; 83 Ala. 11, 3 So. 425.
While section 2961 of the Code of 1907, among other things, provides that the plaintiff "must within the first three days of the return term of the attachment file his complaint," it has been held by the previous decisions of this court that this provision is directory, and that the attachment should not be dismissed or dissolved if the complaint is filed at any time before judgment. Perkerson v. Snodgrass, 85 Ala. 137, 4 So. 752; Decatur Nashville Co. v. Crass, 97 Ala. 524, 12 So. 41. This provision has been reproduced without material change in succeeding Codes, and we must assume that it was readopted as construed in the cases supra. Hence the trial court did not err in overruling the defendant's motion to dismiss the attachment.
It is sufficient to say as to appellant's assignment of error No. 2 that there is nothing in the record to show that the motion to tax the plaintiff with the cost was brought to the attention of the trial court, or that a ruling was made upon same.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.