Visible Measure Gasoline Dispenser Co. v. McCarty Drug Co.

• Decision Date: 03 November 1921
• Docket Number: 4 Div. 940.
• Citation: 91 So. 383,206 Ala. 588
• Parties: VISIBLE MEASURE GASOLINE DISPENSER CO. v. MCCARTY DRUG CO.
• Court: Alabama Supreme Court

91 So. 383

206 Ala. 588

VISIBLE MEASURE GASOLINE DISPENSER CO. v. MCCARTY DRUG CO.

4 Div. 940.

Supreme Court of Alabama

November 3, 1921

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

The Visible Measure Gasoline Dispenser Company applied to the circuit court of Geneva county for common-law of certiorari to annul and vacate the judgment rendered by them in the justice court in which the McCarty Drug Company was plaintiff, and, the circuit court declining to grant the writ after a hearing on the merits, the petitioner appeals. Transferred from Court of Appeals under section 6, p. 449 Acts 1911. Reversed and rendered.

Boswell & Ward, of Hartford, for appellant.

J. N Mullins, of Dothan, for appellee.

MILLER J.

This is a petition by the Visible Measure Gasoline Dispenser Company against McCarty Drug Company for common-law writ of certiorari to review the proceedings in the justice of the peace court in the case of McCarty Drug Company against petitioner, and to declare the judgment rendered null and void.

If the judgment rendered by the justice of the peace court appears and is, on the face of the record, null and void, common-law certiorari is the proper proceeding to review the record and to have the judgment annulled. Independent Pub. Co. v. Amer. Press. Co., 102 Ala. 475, 15 So. 947; Ex parte Allen, 166 Ala. 111, 52 So. 44.

The petitioner is a nonresident corporation. The McCarty Drug Company, a partnership, brought suit for $91 against the petitioner in the justice of the peace court of C. A. Hardwick on February 20, 1919. It was commenced by summons and complaint filed that day and by affidavit for writ of attachment to issue, without giving bond, on the ground that defendant was a nonresident corporation. The writ of attachment was issued on the same day, and on February 26, 1919, it was executed by T. A. Windham, the special constable deputized by the justice of the peace, and he made the following return thereon:

"Executed the within attachment by taking into my possession the following property, to wit, one Visible Measure pump and piping and stand as property of the Visible Measure Gasoline Dispenser Co., Inc., a corporation under laws of Ky. this the 26th day of Feby. 1919, and written notice of the above levy was this day sent by me to the said Visible Measure Gasoline Dispenser Co., defendant.

"This the 26th day of Feby. 1919.

"T. A. Windham, Special Constable."

The record fails to show what written notice was sent by the constable to the petitioner; it fails to show where he sent it, to what post office address; it fails to show how he sent it, whether by hand or by mail. The record fails to affirmatively show that petitioner received any notice of the levy from the constable.

When an attachment is issued against a nonresident defendant, and it is levied on property of defendant, and return thereof is made by the constable on the attachment, the justice of the peace under section 4730 of the Code of 1907, subd. 10, should order:

"That said notice of attachment and the return thereof be given to the [defendant] by publication once a week for three successive weeks *** and a copy thereof mailed to the said defendant at his place of residence when known."

There is nothing in the record to disclose a compliance with this law giving the defendant notice, either by publication or by mail, of the attachment and return of the levy made thereon. It must be done before the property levied on can be legally condemned and sold. Section 2931, Code 1907; Wilmerding v. Corbin Banking Co., 126 Ala. 268, 28 So. 640; Subdivision 10, § 4730, Code 1907.

An act approved September 18, 1915, in General Acts 1915, p. 604, prescribes the manner of giving notice of any and all proceedings in the courts to nonresidents. Section 3 of this act provides:

"That when the address of such nonresident shall be unknown notice of the pendency of said suit or proceeding shall be given by publication as now required by law."

If the address is unknown, the complaint, under section 1 of the act, should so state, and "oath shall be made that such address cannot be ascertained after reasonable effort." There is nothing in the record showing under oath that the post office address of the defendant is unknown and cannot be ascertained after reasonable effort, and nowhere in the record does it appear that notice of the pendency of the suit was given by publication to the defendant. Section 1 of said act requires the plaintiff to have set forth in his complaint "the fact of such nonresidence and whether the post office address is known and if known shall state it as fully as known." Section 2 of said Act of September 18, 1915 (Gen. Acts 1915, p. 604) reads as follows:

"That when the petition, complaint or bill of complaint sets forth the address of such nonresident a copy of the same shall be sent such defendant by registered mail, postage prepaid, marked 'for delivery only to the person to whom addressed' and return receipt demanded addressed to the clerk or register of the court in which the case is pending and such receipt when received in return shall be filed in the cause and shall be prima facie evidence of service thereof."

The complaint signed and filed by the plaintiff does not set forth that the defendant is a nonresident, that its post office address is known, and state it as fully as known, as required by this act. The complaint is silent, says nothing on these matters required by this statute. The affidavit sworn out for the issuance of the attachment declares that the defendant (petitioner here) is a nonresident corporation under the laws of Kentucky, but does not state whether its post office address is known or unknown.

The summons issued and signed by the justice of the peace addressed to the sheriff or constable of the county says:

"You are hereby commanded to summon Visible Measure Gasoline Dispenser Company of America, Inc., a corporation under the laws of Kentucky state, and whose address is Louisville, Ky., to appear before me on the 31st March, 1919, *** to make answer to the complaint filed against it by McCarty Drug Company," etc.

This was issued February 20, 1919, by the justice of the peace.

This is a summons and not a complaint. The statute requires the complaint and not the summons should set forth that defendant is a nonresident, and to state its post office address, if known. The summons states it and the complaint fails to do so. "The complaint, which must in all cases accompany the summons, *** and must be signed by the plaintiff or his attorney." Section 5327, Code 1907. And when the complaint is against a nonresident it must so state, and if its "post office address is known *** shall state it as fully as known." Gen. Acts 1915, p. 604. It is true that subdivision 2 of section 4730 of the Code of 1907 reads, in part:

"A formal complaint or declaration, unless otherwise provided, is not necessary for actions in justice court; a mere indorsement on the summons of the cause of action being sufficient."

Here a formal complaint is filed; the statute provides what it shall aver as to residence and post office address of defendant. It fails to do so. This renders it defective. Sections 1 and...