Grier v. Campbell, 21 Ala. 327

Grier v. Campbell

21 Ala. 327 | Ala. | 1852

CHILTON, J.

— In consequence of the impracticability of effecting personal service upon defendants in many cases, the statutes have prescribed certain modes of procedure, which are regarded as legal or constructive notice to them, so as to authorize the rendition of judgment.

One of the means provided, when the circumstances justify it, is the issue of an attachment, which, when duly levied upon the defendant’s property, is considered as bringing him into court, since it is but a reasonable inference, from the relation which the defendant bears to his property, that he will be put upon inquiry concerning it, and thus be brought to a knowledge of the process by which it is impounded.

But care must be taken that the property levied upon is the property of the defendant; for it is too clear to admit of argument, that if the plaintiff make a simulated levy on property to which the defendant has no claim of right, this will not have the effect of constructive notice so as to authorize the court to proceed to judgment. Indeed, a judgment predicated upon such levy, is no more binding than a judgment rendered upon ordinary process, of which the defendant had no notice whatever. And it is wholly immaterial what length of time transpires between the levy and judgment, inasmuch as the court does not acquire jurisdiction of the cause, and cannot, therefore, properly render any judgment against the defendant.

It has been decided, that the levy of an attachment upon a pair of shoes, if really made, and the shoes are of any *332value, is sufficient. Thornton v. Winter, 9 Ala. 613. And, by parity of reasoning, the levy in good faith upon a candlestick, although not worth more than a dime, if it was really the property of the defendant in the attachment, would be sufficient to sustain the judgment. Such levies fall within the letter of the statute, as they are made upon “the goods of the defendantbut whether they conform to its spirit and intent, and should not be wholly disregarded, upon the maxim “ de minimis non curat hx," is a question worthy of consideration, and one which we prefer to consider as open, notwithstanding the decision in Thornton v. Winter, supra, since the view we take of this case renders its decision unnecessary.

It is hardly necessary to repeat the facts proved in regard to the right of property in the candlestick levied upon in this case. It is very clear that it was not the property of Grier. It was not in his possession, but in the possession of the counsel for the plaintiff, who pointed it out as the subject of levy. The bill explicitly charges, that it was not the property of the complainant, and the defendant denies all knowledge concerning it, save such as ho obtained from the bill and levy, and, therefore, neither admits nor denies the fact as charged. The plaintiff is jjroved to have been a resident, at the date of the levy and for years previous thereto, of the State of Georgia, and a permanent planter in that State, without property, except, perhaps, notes, in this State. Superadd to all this the fact, that the person in whose possession the candlestick was found, and who must be presumed to have known more about the ownership of it than any one else, has not been examined. We can not hesi tate to pronounce that the levy was not real, but colorable merely, and that the judgment founded upon it was wholly unwarranted.

'Whether this of itself would not justify the Court of Eeuity to interfere and afford relief, 'ov putting the parties on a ■ -gal equality, leaving tliun afterwards to contest the questio i of indebtedness in a court of law, wc need not now dc-ide. Certain it is, that a judgment thus obtained, cannot have the effect of imposing upon the plaintiff the onus of proving the negative allegation, that he does not owe the alleged indebtedness.

The plaintiff distinctly avers the jurisdictional fact, that he *333did not owe the demand. This is equivalent to an averment that the judgment was unjust. He could not be supposed, from the nature of the case, to be able to prove this negative assertion; whereas, the plaintiff, if such indebtedness did in fact exist, could easily have proved it. Carpenter v. Devon, 6 Ala. 718; Crafts v. Dexter, 8 ib. 767, and authorities cited in these cases.

The lapse of time intervening between the rendition of the judgment and the filing of the bill, is not such as to bar the relief sought by the plaintiff.

Upon the whole case, our conclusion is, that the Chancellor clearly misconceived the law, and his decree must, therefore, be reversed.

We are asked, in the event of a reversal, to remand the cause, that further evidence may be taken, &c. But this is contrary to the practice, and to the statute, which requires us to render such decree as the Chancellor should have rendered.

Let a decree be here entered, reinstating and perpetuating the injunction, but without prejudice to the right of the defendant to sue in a court of law for the demand upon which the said judgment was rendered; and let the defendant pay the cost of this court and of the Chancery Court.