Kress v. Porter

• Decision Date: 21 January 1902
• Citation: Kress v. Porter, 132 Ala. 577, 31 So. 377 (Ala. 1902)
• Parties: KRESS v. PORTER.
• Court: Alabama Supreme Court

31 So. 377

132 Ala. 577

KRESS v. PORTER.

Supreme Court of Alabama

January 21, 1902

Appeal from circuit court, Clarke county; John C. Anderson, Judge.

Action by H. O. Porter against S. H. Kress. From a judgment for plaintiff, defendant appeals. Reversed.

L. H. &amp E. W. Faith, for appellant.

McIntosh & Rich, for appellee.

HARALSON J.

The action was commenced by attachment at the suit of the appellee, H. O. Porter, a resident of Clarke county, Ala against Samuel H. Kress, for cause that said Kress was a nonresident of the state of Alabama, the attachment being founded on a demand sounding in damages merely, the complaint claiming $1,950 damages for unlawfully causing the plaintiff to be arrested and imprisoned in the city of Mobile, on a charge of petit larceny, on the 18th December, 1900.

The defendant resided in New York, and carried on a large retail store in Mobile, Ala., through an agent, P.J. Banning, who it is alleged, sued out the warrant of arrest, in the absence of defendant, and in his interest.

The plaintiff came to Mobile, and went before Hon. William S. Anderson, the judge of the Thirteenth judicial circuit, composed of Mobile and other counties, and made the affidavits for attachment required by sections 526 and 529 of the Code, whereupon said judge issued a writ of attachment, without bond, directed to any sheriff of the state, to be levied on the property of defendant for the satisfaction of plaintiff's "debt," and made the same returnable to the circuit court of Clarke county, where the plaintiff resided, which county was not one of the counties composing the Thirteenth judicial circuit, but was one of those composing the First judicial circuit of the state.

The writ was placed in the hands of the sheriff of Mobile county on the 2d of February, 1901, and was, on the same day, levied by him on all the goods, wares and merchandise in the store of said Kress in Mobile, and he filed the same with the clerk of the circuit court of Clarke county.

The defendant by counsel appearing in the circuit court of Clarke county, specially for the purpose, pleaded to the jurisdiction of that court, to maintain and try said cause on grounds (1) that the supposed cause of action accrued to the plaintiff out of the jurisdiction of said circuit court and in the county of Mobile and not in the county of Clarke, or elsewhere in the jurisdiction of said court. (2) That defendant was a nonresident of Alabama, and resided in the state of New York; that he had never been served personally with process in this cause; that the only process issued in the cause was a writ of attachment issued by the Honorable Wm. S. Anderson, judge of the Thirteenth judicial circuit of Alabama, which writ was delivered to the sheriff of Mobile county by plaintiff, and was by said sheriff levied upon the property of defendant in Mobile county; that no writ of attachment had been levied upon any property of defendant in the county of Clarke; that said supposed cause of action for which plaintiff sued, arose in Mobile and not in the county of Clarke, and defendant has not appeared in this cause.

The plaintiff demurred to the first plea on grounds, that it fails to state any facts showing that said cause of action is triable only in Mobile county, or that said cause of action is local in character. To the second, because it showed that the suit was instituted by attachment; and third, because said plea fails to show that defendant has not appeared in said cause.

The question for decision presented by these pleas and the demurrers thereto is,--where a nonresident was sued in tort by attachment, and there was no personal service on, and no voluntary appearance by him, and the judge issuing the writ, made it returnable to Clarke county, and the same was levied in Mobile county, did the circuit court of Clarke county, there being no levy in that county, acquire jurisdiction of the suit by virtue of the levy of the writ in the county of Mobile?

This attachment and the jurisdiction of the circuit court of Clarke county to adjudicate the cause, is sought to be maintained under section 526 of the Code, which provides, that in the third and fourth cases (of section 524, which are, "3. To recover damages for a breach of contract, when the damages are not certain and liquidated. 4. When the action sounds in damages merely"), the writ may be issued "only by a judge of the circuit court, judge of probate, or chancellor returnable to any county." It is not disputed, that if the circuit judge had authority under this section to issue the writ returnable to Clarke county, to be there levied on property of defendant in that county, if he had any there subject to levy, and if there levied, the circuit court of that county would have acquired jurisdiction to try the cause and condemn the property levied on to sale for the payment of the demand of plaintiff, if the issues were found in his favor.

In Bank v. Clement, 109 Ala. 270, 19 So. 814, after elaborate review of our former decisions on the subject, and those of the supreme court of the United States, it was said: "We are constrained, in view of the decisions of the supreme court of the United States, to depart from the theory of an attachment which has prevailed [that an attachment partook essentially of a proceeding in personam and not of a proceeding in rem]. These decisions [of the United States supreme court] declare, that as to nonresidents of the state, the...