Kirkland v. Pilcher

• Decision Date: 19 December 1911
• Citation: Kirkland v. Pilcher, 174 Ala. 170, 57 So. 46 (Ala. 1911)
• Parties: KIRKLAND v. PILCHER.
• Court: Alabama Supreme Court

57 So. 46

174 Ala. 170

KIRKLAND v. PILCHER.

Supreme Court of Alabama

December 19, 1911

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action between W. J. Kirkland and G. W. Pilcher. From a judgment for the latter, the former appealed to the Appellate Court, and it certifies a question to the Supreme Court. Question answered.

See also, 57 So. 49.

Certificate to the Supreme Court of Alabama:

"In the above-entitled case, the judges of the court being unable to reach a unanimous conclusion or decision, the undersigned judges of said court, pursuant to the provision of the statute in such cases made and provided, hereby certify to the Supreme Court of Alabama the following question of law, as to which the undersigned judges differ:

"The complaint states a cause of action in detinue, but the verdict and judgment in favor of the plaintiff are for a certain sum, assessed as damages, without a finding or judgment against either party for the property sued for or its alternative value. Does section 4143 of the Code of 1907 operate to prevent this court from reversing such a judgment on appeal, no objection having been made to the verdict or judgment in the court below?

"The above question is submitted as an abstract proposition, as directed by the statute; reference being made to the case in which the question arises for the convenience of the Supreme Court.

"R. W. Walker,

"Presiding Judge.

"Ed. De Graffenried,

"John Pelham,

"Judges."

R. D. Crawford, for appellant.

ANDERSON, J.

Section 3781 of the Code of 1907 prescribes the kind of verdict and judgment in detinue.

Where the plaintiff recovers, the verdict and judgment should be in the alternative for the specific chattels sued for, or, if they are not to be had, for the value thereof as assessed by the jury. McCullough v. Floyd, 103 Ala. 448, 15 So. 848; Brown v. Brown, 5 Ala. 508. A mere moneyed verdict and judgment is not responsive to the complaint and is foreign to the cause of action therein stated. This court has frequently reversed cases in detinue, when the verdict and judgment did not substantially conform to the statute. Jernigan v. Willoughby, 159 Ala. 650, 48 So. 812, and cases there cited, as well as other cases not there cited.

This court has often held that a complaint which did not support a cause of action would not support a judgment. We also think that a judgment not responsive to a complaint, or which cannot be based upon the cause of action therein set out, is invalid. It would be monstrous to hold that a complaint in assumpsit would support a verdict and judgment in ejectment, or that a complaint in unlawful detainer would support a moneyed judgment alone; and a moneyed judgment upon a complaint in detinue is equally as inconsistent and is a legal impossibility. Munday v. Vail, 34 N. J. Law, 423. "A judgment upon issues not made by the pleadings is at least erroneous, and may be set aside or reversed in a proper proceeding for that purpose; but many cases go even further, and hold that judgments based upon issues not made by the pleading are coram non judice and void, and subject to be set aside or disregarded even in a collateral proceeding." 11 Am. & Eng. Ency. of Pl. & Pr. 879, and cases cited in note 1. We agree with what seems to be the weight of authority, that a judgment which cannot be rendered under the complaint is just as invalid as if it was rendered upon a complaint which failed to state a cause of action. In passing upon the validity of judgments, the complaint is jurisdictional and should be considered. L. & N. R. R. Co. v. Williams, 113 Ala. 405, 21 So. 938.

We do not think that the complaint in question will support the moneyed judgment, and that it was erroneously rendered and should be reversed. It is true that section 4143 says: "No judgment can be arrested, annulled, or set aside for any matter, not previously objected to, if the complaint states a substantial cause of action." We think the meaning of this statute, if it now applies to appeals, is that the complaint must state such a cause of action as will support the judgment in question, and that it does not mean that the judgment should be sustained if determining a right or cause of action not set up in the complaint. We do not think that it means that a moneyed judgment can be upheld upon a complaint in detinue, or that a judgment in ejectment should be upheld if the complaint states only a substantial cause of action on a promissory note. In the cases in which this statute was invoked to save the judgments, the said judgments conformed to the cause of action set up in the complaint, and were not foreign thereto. Smith v. Dick, 95 Ala. 311, 10 So. 845; Ritch v. Thornton, 65 Ala. 310; Government St. R. R. v. Hanlon, 53 Ala. 70.

Whether or not the transfer of section 4143 from the article to which it originally belonged to its present position in an article that applies to "satisfying, annulling, or setting aside of judgments" upon motions, is significant that it does not apply to appeals, we need not determine (Woodward Co. v. Brown, 167 Ala. 319, 52 So. 830), for the reason that, if it does apply to appeals as well as motions under article 7 of chapter 85 of the Code of 1907, we think that "a substantial cause of action," as there used, means one that will support the judgment and verdict, and not one that might support some other verdict and judgment.

The error is fatal to an affirmance of the case, notwithstanding the point was not taken in the trial court.

SIMPSON, SAYRE, and SOMERVILLE, JJ., concur in the opinion. McCLELLAN and MAYFIELD, JJ., concur in the conclusion.

MAYFIELD J.

Section 4143 of our Code is one, or a part of one, of the numerous statutes of jeofailes or amendments, passed first by the English Parliament and subsequently by the Legislatures of the various states. This one, as is well known, was intended to prevent the arrest or reversal of judgments as for mere defects in the form of the declaration, complaint, bill, or petition; and to require that as to such formal defects advantage should be taken by special demurrer or other special pleading, so that such formal defect could be amended while the pleading was in fieri. Before the passage of such statutes, judgments were constantly arrested and reversed for merely formal defects, and though such defects were never complained of until after verdict and judgment.

So the object and purpose of this particular statute was to change this rule, and limit objections to the judgment, or to the motion in arrest thereof, or objections in proceedings to amend, to those of substance only; and if the declaration, complaint, bill, or petition contained a substantial cause of action, no objection could be taken to it on motion in arrest, or in independent proceedings to amend or reverse, unless the objection was previously made--that is, before rendition.

This particular statute or its progenitor has been in force in this state for a hundred years, since even before the state was admitted into the Union. It was enacted by the Legislature of the Mississippi Territory, in the year 1811 and has been with us continuously ever since. It therefore appeared in our first Code (of 1852) as section 2405. It was intended, and has always been construed, to be applicable only to the sufficiency of the declaration, complaint, bill, or petition, and not to the...