Morrow v. Norvell Shapleigh Hardware Co.

• Decision Date: 08 February 1910
• Citation: Morrow v. Norvell Shapleigh Hardware Co., 51 So. 766, 165 Ala. 331 (Ala. 1910)
• Parties: MORROW v. NORVELL SHAPLEIGH HARDWARE CO.
• Court: Alabama Supreme Court

51 So. 766

165 Ala. 331

MORROW v. NORVELL SHAPLEIGH HARDWARE CO.

Supreme Court of Alabama

February 8, 1910

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

Action by the Norvell Shapleigh Hardware Company against V. W Morrow. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Claude Riley and John H. Wilkerson, for appellant.

J. F Sanders and J. M. Ham. for appellee.

McCLELLAN J.

Action of detinue; judgment by default; defendant appeals complaining that the judgment is erroneous because there was no service of summons upon him and no appearance by or for him.

Detinue is a personal action, the gist of which is the wrongful detention of personal property. 14 Cyc. 241, and notes. In order to obtain jurisdiction to proceed to a valid judgment in such cases, the orderly and usual courses for the service of process--notice of the action commenced--in personal actions, must be pursued, unless the defendant waives the right. This he may do, of course, by an unqualified appearance, or in other legally sanctioned ways. The execution of the writ of detinue by taking possession of the property described therein is not sufficient to show that personal service, or its equivalent, on the defendant, was had, so as to support a judgment by default. Fowler v Banks, 21 Ala. 679. Nor does the execution by the defendant of the ordinary forthcoming bond constitute an unqualified appearance in the action. Nabors v. Nabors, 2 Port. 162.

Such a bond, unless it, with certainty to every intent, as is requisite to erect an estoppel by deed, recites the fact of possession of the property by the defendant, will not operate as an estoppel, in respect of a denial of possession, against the defendant; nor, in the nature of the case, and in the absence of the recital just before indicated, will such a bond create an estoppel in pais. Miller v. Hampton, 37 Ala. 342, to be read in connection with Wallis v. Long, 16 Ala. 378.

The return of the sheriff, indorsed on the summons reading to V. M. Morrow, was in this form and phraseology: "Return of summons and complaint and execution of writ of seizure: I have executed this writ this 18 day of January, 1907, by leaving a copy of within summons and complaint with...... 200 bushels corn [then describing certain other chattels]......V. M. Morrow, Defendant. [ [Signed] J. B. Knight, Sheriff."

Code, § 5301, reads: "The summons must be executed by the sheriff or other officer in any county, by leaving a copy of the summons and complaint with the defendant, which fact he must return with the process."

It is settled here that service of the summons, without the complaint, will suffice if no objection is made in the court below. Lenoir v. Broadhead, 50 Ala. 58. Aside from this, a return must show that the summons was executed as the statute prescribes. While this is true, the disposition of this court, and of many others of dernier resort, has always been to indulge in no nice criticisms with respect to the words employed to express compliance with the prerequisites to an effectual service of this character of process. 32 Cyc. 498 et seq. It is unnecessary to attempt to enumerate the cases decided elsewhere. They are noted under the text cited. As to our own decisions on the subject, some will be referred to.

In Snelgrove v. Bank, 5 Ala. 295, the notice read to Alfred Snelgrove and Aaron Livingston, and the return recited service on Snelgrove. The court said: "The conclusion of law, in the absence of a plea denying the fact, is that he is the individual of that name, who is intended by the notice."

Veasey v. Brigman, 93 Ala. 548, 9 So. 728, 13 L. R. A. 541, was very similar to Snelgrove v. Bank. The return was held sufficient though it showed service on "Jack Veasey, defendant," whereas the process directed service upon "A. J. Veasey." The word "defendant" was, of course, a descriptive part of the return, but the return would have been upheld in that case had this been omitted.

In Cantley v. Moody, 7 Port. ...