De Arman v. Massey
| Decision Date | 02 July 1907 |
| Citation | 151 Ala. 639,44 So. 688 |
| Parties | DE ARMAN v. MASSEY. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Franklin County; Joseph H. Nathan, Judge.
Action by Nute Massey against Arthur De Arman. From a judgment for plaintiff, defendant appeals. Reversed.
Almon & Andrews, for appellant.
W. H Key, for appellee.
This is an action sounding in damages for an alleged assault and battery committed by appellant on appellee. It was begun by attachment, upon the ground that defendant was an absconder and there was no personal service had on the defendant. Failing to appear, judgment by default was entered, and on writ of inquiry the jury assessed the damages at $2,200. Upon this finding the court rendered a personal judgment against the defendant for said sum and also condemned to sale the real estate levied on. It is, of course, fundamental that without jurisdiction of the person obtained, a personal judgment against a defendant cannot be validly rendered. To secure such jurisdiction the rule was, prior to Bank v Clement, 109 Ala. 270, 19 So. 814, that notice implied in the levy, and service of notice in the manner prescribed of the levy, though such notice was not personally served on the defendant, availed to bring the defendant within the lawful powers of the court. This rule proceeded on the idea that the proceeding in attachment or garnishment was by nature in personam. Whatever may have been the wisdom and soundness of such a rule, long enforced by the courts of this state, the theory of attachments, in keeping with which the mentioned rule obtained, was entirely changed when the Supreme Court of the United States, in a cause in which a nonresident was the party defendant, declared a proceeding in attachment or garnishment to be in rem, and not in personam. Accordingly, in Bank v. Clement, supra, this court, yielding a proper influence to the announcement of the Supreme Court of the United States in a cause in which that court had superior and controlling jurisdiction, because of the nonresidence of a party therein, accepted the principle, and applied it in that case, viz., that without personal service a judgment in personam against a merely constructively served defendant or garnishee could not be validly rendered, but that the proceeding in attachment or garnishment being, in the absence of personal service, in rem, the power of the court in the given cause was strictly limited...
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... ... The judgment can go no further than a ... condemnation of the debt to the satisfaction of the ... plaintiff's demand. De Arman v. Massey, 151 Ala ... 639, 44 So. 688; Southern Railway Co. v. Ward, 123 ... Ala. 404, 405, 26 So. 234, 82 Am. St. Rep. 129; Kress v ... ...
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...L.Ed. 867, are not, in my opinion, opposed to Harris v. Balk, as seems to be contended for appellant. We have recently, in De Armon v. Massey, 151 Ala. 639, 44 So. 688, our view of the scope and effect of the holding, as at present important, in Pennoyer v. Neff. That case decides the exten......
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Jos. Joseph & Bros. Co. v. Hoffman & McNeill
...and then only render judgment condemning the property or indebtedness to the satisfaction of the ascertained debt or damages. De Arman v. Massey, supra; Sweeney Tritsch, supra; Cooper v. Reynolds, supra. Accordingly, the court of common pleas of Ohio was without authority or power to render......
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... ... provides; hence there can be no ascertainment of the debt due ... and condemnation of the property attached to its ... satisfaction. De Arman v. Massey, 151 Ala. 639, 44 ... So. 688; Wilmerding v. Corbin Banking Co., 126 Ala ... 268, 28 So. 640; Independent Pub. Co. v. Am. Press ... ...