Brown v. Brown
| Decision Date | 31 December 1854 |
| Parties | WILLIAM L. BROWN v. BROWN & MCCULLOUGH. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM DAVIDSON.
The defendants in error performed labor and services for the plaintiff in error, in erecting a house in the county of Davidson, and they sued out an attachment at law, under the act of 1846, ch. 118, sec. 3, to enforce their mechanics' lien. No process was served upon, or notice of the proceeding given to, the plaintiff in error, who was at the time a resident citizen of the county of Davidson. The attachment was duly levied upon the premises in question, and returned to the May term, 1854, of the circuit court of said county, and a declaration in debt filed the first day of the term. There being no plea filed in the case, judgment final by default was rendered on the last day of the term, to reverse which this writ of error was prosecuted.
Wm. Thompson, for the plaintiff in error:
The plaintiff in error contends that the judgment is erroneous:
1. It does not appear that the defendant below had notice of the proceeding. It was his legal and constitutional right to have been notified, that he might defend, if he thought proper. Vide 2 Meigs' Dig. 784, 785, for the cases adjudicated by the courts of Tennessee.
2. It is not a case in which judgment final by default can go at the first term. Vide N. & C. Dig. 406.
3. The clerk had no authority, by law, to count the interest.
4. The interest could only be counted, legally, by a jury. 1 Meigs' Dig., title Interest.
5. The writ of enquiry, could legally be executed only at the second term.
6. The clerk had no authority to issue the attachment. Vide Sess. Acts 1852, p. 674; Act 1843, ch. 29.
Andrew Ewing, for the defendants in error:
It is assigned for error: 1st. That there was no personal service of the process on the defendant. We insist that personal service is not required by the act of the Legislature. It gives the remedy by attachment as a proceeding in rem, just in the same manner as the remedy against boats, under the act of 1833, and it is decided in 9 Humph. 629, that no personal service is necessary under that act in order to secure a recovery. The proceedings under both these acts of Assembly are not in analogy to the acts granting attachments against absconding or non-resident debtors. They are given to ensure the payment of a specific class of debts, if the remedy is pursued in a limited period of time, and notice is not required.
2. The second error alleged by the plaintiff in error is abandoned.
The third and fourth errors are that in this species of action no judgment can be rendered final by default, but there must be the intervention of a jury. The act of 1794, sec. 26, says “that judgments in debt by default shall be final, unless where damages are suggested on the roll.” It has always been understood that “damages suggested on the roll” referred to actions on penal bonds, where the nominal amount sued for and recovered was the penalty, but the gist of the action was special damages arising from the breach of the conditions, and which were always less than the penalty. Damages are suggested in the writ and recoverable in every action of debt, but in all actions on notes, bills, accounts, etc., they are merely ancillary to the debt, whilst in actions on penal bonds they are the specific thing sued for. There is no limitation in the statute as to actions on bills, notes, bonds, etc., as there is in the statute giving jurisdiction to justices of the peace, nor is there any sensible reason why, when the justice of an account is admitted by default, there should not be a final judgment.
This action in debt for $1,167.86 was instituted in the circuit court of Davidson, by Brown & McCullough, against Wm. L. Brown, the defendant below. The debt is for materials furnished and work and labor done, by the defendants in error, as mechanics, in building a house for the plaintiff in error, on his land in the vicinity of Nashville. The suit was commenced by attachment issued by the clerk of said court, and levied on said land and premises, to enforce the mechanics' lien for the payment of said debt. No process was served on the person of the defendant; he did not appear, and the judgment by default for the amount of said debt was taken against him.
The case is in this court by writ of error, issued at the suit of the defendant.
It is now argued that the judgment by default is void, because the defendant below had no personal notice of the suit.
It is a general principle, founded in reason and justice, that if a defendant have no notice of the suit, and did not appear, the court has no jurisdiction over his person, and its judgment against him in such case is merely void. Bridgeway v. Bank of Tennessee, 11 Humph. 523;Burden v. Fitch, 15 Johns. 140; Buchanan v. Rucker, 9 East, 192. And, therefore, the judgment of another state of the Union, or of a foreign state, rendered in a case where the defendant was not duly notified to...
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