Terminal Oil Mill Co. v. Planters' Warehouse & Gin Co.

• Decision Date: 16 November 1916
• Docket Number: 4 Div. 632
• Citation: 73 So. 18,197 Ala. 429
• Court: Alabama Supreme Court
• Parties: TERMINAL OIL MILL CO. v. PLANTERS' WAREHOUSE & GIN CO.

73 So. 18

197 Ala. 429

TERMINAL OIL MILL CO. v. PLANTERS' WAREHOUSE & GIN CO.

4 Div. 632

Supreme Court of Alabama

November 16, 1916

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

Suit by the Planters' Warehouse & Gin Company against the Terminal Oil Mill Company. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Act April 18, 1911, p. 450, § 6. Reversed and remanded.

Jones &amp Powell, of Andalusia, for appellant.

Baldwin & Murphy, of Andalusia, for appellee.

MAYFIELD J.

Appellant is a foreign corporation. Suit was instituted against it in Alabama, by attaching some cotton seed. The attachment was dissolved, on the ground that the property was in custodia legis at the time of the levy. The defendant, however, had replevied the property before the attachment was dissolved. After the dissolution of the attachment, the defendant filed a plea to the jurisdiction of the court, which plea, on plaintiff's motion, was stricken on the ground that replevying the property was such an appearance as conferred jurisdiction and authorized a personal judgment.

In this ruling the trial court erred. There was never any appearance of record or in court, such as to confer jurisdiction to render a personal judgment. It is unnecessary to decide whether such judgment could have been rendered if the attachment had not been dissolved, but had been retained, and the property condemned to the satisfaction of the process and the defendant had then failed to have it forthcoming in accordance with the terms of the bond. Of course, in that event, a judgment could have been entered on the bond, as forfeited according to its terms and the practice of our courts. No such case, however, ever arose, and, of course none such is here presented for decision. Both the attachment and the bond were functus officio when the attachment was dissolved, and there was never any attempt to acquire jurisdiction by process other than that to subject the property; and there was certainly no personal appearance, voluntary or otherwise. The appearance in court, and that to answer the process served on its property, were each limited and special, to prevent its property from being subjected; and as the court decided that its property could not be so subjected, its appearance for other purposes were at an end, and it declined to waive the court's lack of jurisdiction to render a personal...