Ex parte National Lumber Mfg. Co.

• Decision Date: 28 April 1906
• Citation: 41 So. 10,146 Ala. 600
• Parties: EX PARTE NATIONAL LUMBER MFG. CO.
• Court: Alabama Supreme Court

41 So. 10

146 Ala. 600

EX PARTE NATIONAL LUMBER MFG. CO.

Supreme Court of Alabama

April 28, 1906

"To be officially reported."

Certiorari by the National Lumber Manufacturing Company to review a judgment against it as garnishee in a cause wherein the Dixie Grain Company was plaintiff and the Powe Logging Company defendant. Motion to quash the writ overruled, and judgment rendered.

It was shown that judgment nisi was rendered against the movant as garnishee, and it nowhere appears that proof was made that proper service had been had on one of the officers of this corporation upon whom service could be legally made, and it is without such proof at a subsequent term of the court the judgment nisi was made final against this movant. There was motion made by the Dixie Grain Company, which was made party defendant to this motion for certiorari, to dismiss, quash or supersede the writ of certiorari issued out of the Supreme Court at the instance of the National Lumber Manufacturing Company. The cause was submitted on the motion for certiorari and on the motion to quash and dismiss the motion for certiorari. It was shown by the records and proceedings of the circuit court that a judgment nisi or by default was entered against this petition, and the record fails to show that proof was made that the person upon whom process was served was, at the time of the service, such an agent or officer as was by law authorized to receive service for and on behalf of the corporation.

Stevens & Lyons, for movant. W. C. Fitts, McIntosh & Rich, contra.

DOWDELL J.

A final judgment in garnishment proceedings is merely a confirmation of the judgment nisi, which is a conditional judgment. A valid judgment nisi is therefore necessary to support a valid final judgment. If the judgment nisi is for any reason void there can be no confirmation of it, and hence no valid final judgment can be predicated on it. Goode v. Holcombe, 37 Ala. 94; Drane v. King, 21 Ala. 558; Spence v. Simmons, 16 Ala. 828; Lowry v. Clements, 9 Ala. 422; Dickerson v. Walker, 1 Ala. 48.

To authorize a judgment by default against a corporation, the record must show that proof was made that the person upon whom process was served was, at the time of the service, such an agent or officer as by law was authorized to receive service for and on behalf of the corporation. This has been the rule of practice in this state since the case of Huntsville v. Walker, Minor, 391. This rule had been followed in numerous cases decided by ...