Sweeney v. Tritsch

• Citation: 151 Ala. 242,44 So. 184
• Parties: SWEENEY ET AL. v. TRITSCH.
• Decision Date: 06 June 1907
• Court: Supreme Court of Alabama

44 So. 184

151 Ala. 242

SWEENEY ET AL. v. TRITSCH.

Supreme Court of Alabama

June 6, 1907

Appeal from Chancery Court, Jackson County; William H. Simpson Chancellor.

Action by Leo Tritsch, as assignee, against W. H. Sweeney and others. From a decree declining to cancel a deficiency judgment rendered against defendant Sweeney, Sweeney and others appeal. Reversed and remanded.

L. E Brown and Rushton & Coleman, for appellants.

John B Talley and Bilbro & Moody, for appellee.

McCLELLAN J.

Upon bill filed to declare and enforce against a nonresident, as shown on the face of the bill, a vendor's lien, a decree was rendered granting the relief prayed, and, after sale of the property subject to the lien, a balance of the indebtedness found due remained unsatisfied. Thereupon, without other notice at any time than by publication to the defendant, a personal decree over for such balance was rendered. After the lapse of ten years the defendant, still a nonresident, petitioned the court in which the decree over had been rendered to vacate it on the ground that such decree was void, since he was not brought into court by personal service. The petition was dismissed conditionally.

It has been settled, since the leading decision of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, was pronounced, that a personal judgment or decree rendered in a cause against a nonresident upon whom no personal service therein was had is void, and, of course, unenforceable in any manner. That doctrine has been several times affirmed by this court. Exchange Bank v. Clement, 109 Ala. 270, 19 So. 814; L. & N. R. R. Co. v. Nash, 118 Ala. 477, 23 So. 825, 41 L. R. A. 331, 72 Am. St. Rep. 181, and authorities cited in brief. While a court is without power to alter, vary, or annul final judgments or decrees after the close of the term at which rendered, except for the correction of clerical misprisions or amendments, the evidence of which the record affords, yet where it appears on the face of the record that the judgment or decree is void, either for want of jurisdiction of the subject-matter or of the party, it is the duty of the court, upon application thereto by the party having rights and interests immediately involved, to vacate such judgment or decree at any time subsequent to rendition; and this, out of a due regard to its own dignity, the protection of its officers, and the prevention of abuse of its process and of injustice to its suitors. Buchanan v. Thomason, 70 Ala. 402; Pettus v. McClannahan, 52 Ala. 55; Chamblee v. Cole, 128 Ala. 649, 30 So. 630, and authorities in each cited. And it appears that this court has repeatedly, in the cases referred to, recognized the right and propriety of appeal, whether the order to vacate be granted or refused.

The decree here in question being, as shown by the face of the record in the original cause, utterly void, the application of Sweeney should have been granted, unless, as insisted by appellee, the lapse of time has affected his rights in the premises, or unless his appearance by filing the motion under consideration gave the court jurisdiction of him as a party defendant in the original cause, and justified the reopening of that cause and the rendition of a judgment against him. In our opinion, neither of these contentions can be sustained.

With reference to the first proposition, this court in Pettus v. McClannahan, 52 Ala. 58, and also in Baker v Barclift, 76 Ala. 417, declares unequivocally that the lapse of time can have no effect to qualify the right to have a void decree, void as shown by...