71 Ala. 461 | Ala. | 1882
Prior to the enactment of the present statute, if it was not the duty of the court to try and determine the facts, if in the regular and usual course of procedure they should have been submitted to a jury for determination, and the parties waiving the intervention of a jury, submitted them
The insufficiency of the special finding is questioned first,, because it is silent as to the satisfaction of the judgment sought to be revived. Assimilating the special finding to a special verdict of a jury, we incline to the opinion that the objection would be well taken, if the satisfaction of the judgment had been an issue of fact submitted for the decision of the court. A special verdict must find directly and affirmatively every fact in issue essential to the right of recovery, or judgment upon it can not be pronounced ; it can not be aided by intendment or by referen e'e to extrinsic facts. But the verdict of a jury, whether it. is general or special, must be confined and responsive to the issue. So far as it may pass beyond the issue and-find facts either confessed or not denied, it is impertinent and bad pro tanto.—10 Bac. Ab. 353; Lee v. Campbell, 4 Port. 198; Sewall v. Glidden, 1 Ala. 52. The issues of fact in the case were presented by special pleas, but no one-of them was directed to, or1 involved the inquiry whether the-judgment was satisfied or unsatisfied. The statute declares, that if ten years elapse without the issue of execution, a judgment must be presumed satisfied, and the burden of proving that it is not, that it remains unpaid, rests upon the party seeking its revival.—Code of 1876, § 3174. If there had been a plea of payment, or any issue touching the satisfaction of the judgment, the points argued by counsel would arise. But in
The first plea assails the jurisdiction'of the court to render the judgment of which revival is sought, upon the ground that a complaint was not filed in the original action. The plea is upon its face bad. If the fact is, that in the original suit the court proceeded to final judgment without requiring the plaintiff to file a complaint, a statement in writing of the cause of action, standing in our practice in lieu of a declaration at common law, it was mere irregularity, for which on error a ' judgment by default would be reversed. But it was mere irregularity, not affecting the validity of the judgment when collaterally assailed. A scire facias for the revival of a judgment can not be defended because of matters going behind the judgment, or of errors in the course of proceedings leading to its rendition. If the court had jurisdiction, the judgment imports absolute verity. —Miller v. Shackelford, 16 Ala. 95; Duncan v. Hargrove, 22 Ala. 150. Whether, if the facts found specially would not support the conclusion of the Oity Court, that a complaint was filed in the original action, the judgment, if in other respects correct, would be disturbed, we need not decide. The conclusion of the City Court is manifestly right and proper. The want of endorsement upon the complaint by the clerk of the fact of its filing is a clerical omission. Such an endorsement would have been conclusive evidence -of the fact of filing, at any time after the proceedings had ripened into judgment. But it is not, before or after judgment, the exclusive evidence of the fact. When there is no countervailing evidence, and the complaint is found with the original file •of the papers in the cause, from which it must be transcribed when the final record is made up, forming part of it, the fact •of filing is shown satisfactorily.
It may appear that the garnishment was irregular, that it did not with certainty set out the names of the garnishees, or properly describe them as partners, and for this reason, on timely application, would have been quashed at their instance. But in obedience to it, they appeared and answered, admitting an indebtedness to the defendant in attachment.. The appearance and answer, without objection, cured whatever of defect or irregularity there may have been in the writ or summons of garnishment. The appearance of a party, without objection, is a waiver of defects or irregularity in the process issuing to him, and the judgment thereafter rendered is conclusive upon him. The proceeding was merely incidental and auxiliary to the proceedings and judgment against the defendant in attach
The proceeding by attachment is not, as is insisted by the appellant, a proceeding in rem¡ nor is it a mere judgment on condemnation of the thing attached the court is authorized to render. The suit is personal against the defendant, against him, not against the res/ the complaint is filed in the same form, with the same and no other averments than are sustained when he has been personally served with summons to appear and answer; and the suit is subject to suspension or abatement because of intervening personal disabilities. The attachment, if the leading, is essentially original process; the commencement of suit is reckoned from its levy, and, while pending, it may be pleaded in abatement of a subsequent suit for the same cause of action. Dean v. Massey, 7 Ala. 601. The judgment rendered is personal and general, that the plaintiff have and recover of the defendant. There has been in practice no distinction observed, nor do the statutes contemplate or require that the distinction should be observed, in the form of judgment rendered in suit commenced by attachment and in a suit commenced by summons. At his election, the plaintiff may sue out upon the judgment a vendiUoni exponas for the sale of the property attached, or a fieri facias which may be levied on that property, or on any other effects of the defendant.— Garey v. Hines, 8 Ala. 837. It is apparent the statutes intend an attachment, when the original process, shall serve a double purpose, first, giving notice to the defendant, affording him the opportunity to appear and defend; secondly, the creation of a lien upon the thing attached, furnishing security to the plaintiff, if he succeeds in obtaining judgment. The judgment rendered originally is in the form of, and has the-same legal effect as, the judgments which it has been the practice of the courts to render in suits commenced by attachment, and is not void or irregular. .
It is further insisted by the counsel for the appellant, that the City Court was without jurisdiction to render the original judgment — -that it is coram non judAce, because rendered without personal notice to the defendant, or notice otherwise than by
Erom the earliest existence of organized government here to the present time, we have had statutes authorizing the commencement of suits at law, in particular cases, by attachment of the property or effects of the defendant, and their prosecution to final judgment, which within the State would bind the defendant personally, and would be of the same effect and dignity,
We find no error in the record, and. the judgment of the City Court must be affimed.