Oliver v. Kinney

• Decision Date: 29 June 1911
• Citation: Oliver v. Kinney, 173 Ala. 593, 56 So. 203 (Ala. 1911)
• Parties: OLIVER v. KINNEY.
• Court: Alabama Supreme Court

56 So. 203

173 Ala. 593

OLIVER v. KINNEY.

Supreme Court of Alabama

June 29, 1911

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Assumpsit by E. C. Kinney against W. J. Oliver.From a judgment for plaintiff, defendant appeals.Reversed and remanded.

Gaston & Pettus, for appellant.

Eyster & Eyster and J. B. Brown, for appellee.

SAYRE J.

Suit in this case was commenced in April, 1910, by attachment on the ground that the defendant was a nonresident.The attachment was levied upon goods and chattels and by the sheriff's writ of garnishment to the Parker Bank & Trust Company.Defendant replevied the goods and chattels by executing a forthcoming bond, and secured a discharge of the garnishment by giving bond as required by section 4312 of the Code of 1907.On September 17, 1910, plaintiff filed his complaint and on September 21st, the same being the third day of the fall term of the circuit court, judgment nil dicit was rendered containing this recital: "Come the parties by their attorneys."This appeal is prosecuted on the theory that the judgment was prematurely rendered.

In the ordinary case of suits commenced by summons and complaint the statute provides that: "When the term of the court is but one week, the defendant must plead or demur to the complaint within the first day; and when the term of the court is more than one week, by noon of the second day."Code, § 5347.In cases in which the suit is commenced by attachment on a demand due and payable at the time, "the plaintiff must, within the first three days of the return term of the attachment, file his complaint, and the cause stands for trial at such return term, if the levy is made and notice thereof is given twenty days before the commencement of such term."Code, § 2961.Section 2963 is as follows "If the defendant appears and pleads, the cause proceeds as in suits commenced by summons and complaint; if he fails to appear, or appearing, fails to plead within the time required by law, the plaintiff may take judgment by default or nil dicit, and may execute a writ of inquiry, if necessary."This section was enacted at a time when the theory prevailed in this state that actions by attachment were in personam and might lead to binding personal judgments without actual personal notice.It was frequently so interpreted in practice.But since the decision in Bank of Spokane v. Clement,109 Ala. 270, 19 So. 814, this court has followed the doctrine of the Supreme Court of the United States, which is that attachment proceedings, where the defendant is not brought in by personal service or fails to appear generally in defense, partake of the nature of proceedings in rem, and in such case the court is without jurisdiction to render a judgment of binding effect in personam, but may proceed only to a judgment condemning the property levied upon to the satisfaction of the plaintiff's demand, which, for that purpose only, is to be ascertained and declared.In view of this state of the law, section 2962 of the Code was enacted, as follows: "Whenever a complaint is filed in a suit begun by attachment, whether at the time of suing out the attachment or subsequently thereto, upon the demand of the plaintiff therefor, a summons shall issue upon the complaint in all respects, and with the same effect as if the suit had been begun by summons and complaint.The issuance and service of such a summons and complaint shall in no manner affect the levy or lien of the attachment, or the enforcement thereof."So that, where service of summons and complaint is subsequently had, actions commenced originally by attachment are put on the same footing with actions in which attachments are sued out in aid of a pending suit.There was in this case no summons served, for the reason, no doubt, that the defendant remained without the state.

But, by executing a bond for the forthcoming of chattels or for the discharge of garnishment, in a suit begun by attachment, the defendant acknowledges notice of the suit, and, if the attachment proceeding is sufficient to invoke the jurisdiction of the court, he thereby becomes bound to appear and defend, or becomes liable to be proceeded against as in case of personal service of process.From that time the proceeding becomes and is a personal action against the defendant, and, except in the respect provided by statute to be noticed, goes on as if the attachment had been sued out in aid of a pending suit, and the court is authorized to proceed to a judgment having like force and effect as in the case of an action commenced by summons personally served as well as a judgment condemning the property levied upon.It is clear that such was the legislative understanding of the effect of the execution of the bonds provided for by the statute, for it is enacted that, under certain conditions, judgment may be rendered against the sureties as to whom process is not required to issue.Peebles v. Weir,60 Ala. 413;Chastain v. Armstrong,85 Ala. 215, 3 So. 788;Hawkins v. Armour Packing Co.,105 Ala. 545, 17 So. 16;Blyler v. Kline,64 Pa. 130;Brenner v. Moyer,98 Pa. 274;Richard v. Mooney,39 Miss. 357;Wilkinson v. Patterson, 6 How.(Miss.) 193;Shields v. Barden,6 Ark. 459;Drake on Attachments, § 332.

The judgment recites an appearance by the defendant.But the recital is to be construed in connection with the appearance shown by the other parts of the record.The record shows only an appearance by the execution of the forthcoming bond and the bond for the discharge of the garnishment.The bill of exceptions, reserved on the motion to set aside the judgment, shows that by his appearance the defendant indicated no submission to the court's power to act at the time.

It is obvious that an appearance made for a special purpose ought not to be held to give the court jurisdiction over the defendant, except to the extent of hearing and determining the question which he specially presents to it for consideration.Freeman on Judgments, § 120a.In Grigg v Gilmer,54...