#### Witherington *v.*Gainer.

*Trial of Right of Property.*

(Decided Feb. 14th, 1907.

43 So. Rep. 117.)

*Attachment; Claim Suit; Amendment of*Affidavit.^-Where an .affidavit in a claim suit 'states that- the property attached is not the property of the attachment debtor, but is the property of the claimant, without stating the nature of the right or claim set up, such an affidavit is sufficient to give the court *656jurisdiction of the claim suit and to authorize an amendment setting forth the nature of the right or claim of claimant to the property.

Appeal from Conecuh Circuit Court.

Heard before Hon. J. C. Richardson.

Action of attachment by Charles Gainer against James Murray; J. E. Witherington, claimant. From the judgment, said claimant appeals.

Reversed.

Charles Gainer had issued and levied an attachment upon the crops of James Murray to enforce a landlord.^ lien. There were two suits, and J. E. Witherington filed a claim bond and affidavit, setting out that the property levied upon in the attachment writ was the property of said Witherington. Both cases were tried together by agreement. The evidence .tended to show that the claimant had no title to the property, but had a lien on the same for rent and advances. This evidence was excluded, and no exception was reserved-to it. The claimant then made an offer to file an affidavit in each case, stating how and by virtue of what lien he claimed the property levied on under attachment, and offered these new affidavits as amendments'to the original affidavit filed in the cause. The court declined to permit the amended affidavit to be filed, and to this action of the court the claimant excepted. This is the only point presented.

Stallworth & Burnett, and James A. Stallworth, for appellant. —

The court erred in refusing the motion of claimant to amend his *affidavit.*— Martin *v. Meyer Bros.,*112 Ala. 620; *Cade r,.*Floyd,, 120 Ala. 484; Rhodes, *et al. v. Smith,*66 Ala. 177.

Hamilton & Crumpton, and D. M. Powell, for appellee. —

The affidavit must state how claimant claimed, whether bv title or lien. — Sec. 4145. Code 1896; *Tvey v.Cost-on,*134 Ala. 259: *Bennett v. McKee,,*144 Ala 601. In the absence of a statute authorizing it the court has no power to allow the amendment of an affidavit for *attachment.*— Flexner *v. Dickerson,*65 Ala. 132; *Hall*
      *657
      *v. Brasselton,*40 Ala. 406; *Sims v. Jacobson,*51 Ala. 186.

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.