29 So. 2d 224 | Ala. | 1947
This is an action of unlawful detainer. The statutory method of service in an action of this kind is questioned. Mitchell Gurley instituted the suit in the Intermediate Civil Court of Birmingham against Norman Krasner and D. Krasner, individually and doing business as partners under the firm name of D. Krasner and Company. The suit seeks recovery of possession of certain real estate, with storehouse thereon, located in Warrior, Alabama, together with damages for the detention of the property.
There was judgment in the Intermediate Civil Court for the property sued *688 for and $75 as damages for the detention. Upon appeal to the Circuit Court of Jefferson County the case was tried before a jury which returned a verdict for the plaintiff for the property sued for and $280 as damages. Norman Krasner was personally served and he alone made an appearance and pleaded in the case. Neither D. Krasner nor the partnership appeared in either court. The return of the sheriff by his deputy shows that the summons and complaint was "executed on D. Krasner by leaving a copy at residence of Norman Krasner, usual place of abode of D. Krasner." However, D. Krasner made no attack in either the Intermediate Civil Court or the Circuit Court on the purported service on himself. After notice of the appeal of Norman Krasner to this court was given personally to D. Krasner, he joined in the appeal and made assignments of error here as to himself.
The judgment entry in the circuit court shows that Norman Krasner appeared solely for himself and pleaded not guilty and the "other defendants having failed to appear or plead, issue is joined under § 972, Title 7, Code of 1940, as if defendants had pleaded not guilty." There was verdict and judgment for the plaintiff against all the defendants. It is insisted that it is error for judgment to be rendered against all the defendants when only Norman Krasner was served with process and appeared in the cause. In other words, it is claimed that the statutory method of service is invalid. Section 970, Title 7, Code of 1940, provides for service in a suit for unlawful detainer as follows: "The notice must be served on the defendant at least six days before the return day of the process, and may be served on him anywhere within the state. The return of the service thereof by any sheriff or constable of the state is sufficient, or proof of the fact may be made before the justice. It is sufficient to leave a copy thereof at his usual place of abode."
There can be no doubt of the propriety of affirming here the judgment so far as Norman Krasner is concerned. Error, if any, that may have intervened in rendering judgment against all the defendants (see Parker v. Parker,
But in response to the statutory notice — § 804, Tit. 7, Code of 1940, — D. Krasner has appeared here and his assignments of error will be regarded as several. Bilbe v. Camp,
What is the effect of the service on D. Krasner, when in accordance with the statute a copy of the notice is left at his usual place of abode? The legislature can, of course, provide any method of service it deems wise just so long as the method does not violate the constitutional requirement of due process. There has been a tendency in the courts to relax to a certain extent the requirements of personal service as laid down in Pennoyer v. Neff,
The sheriff's return shows that the notice was served on D. Krasner by leaving a copy at the residence of Norman Krasner, usual place of abode of D. Krasner. The sheriff's return imports verity. It was not attacked and so we take as true the statement therein that D. Krasner was domiciled at the residence of Norman Krasner and accordingly was a resident of this state. Jaffe v. Leatherman,
But even though we assume that D. Krasner was a resident of this state, can we also in line with the requirement of the foregoing authorities assume that the method of service employed was reasonably calculated to give D. Krasner actual notice of the proceedings? Section 970, Title 7, Code of 1940, has been brought forward in its present language from code to code for many years. So far as we can ascertain the validity of the method of service therein provided has never been questioned before. Evidently through all these years the legislature has considered the notice adequate in a suit of this kind. It is sufficient to point out the particular nature of the suit. This is an action in unlawful detainer which means that it is an action for the possession of real estate and must be brought within the jurisdiction where the land lies. It is true that actions of this kind are prosecuted without a preliminary seizure of the land. But this court has said that such possessory action partakes of the nature of suits in rem for the reason that the court undertakes to deliver the land. Woolf v. McGaugh,
Other questions presented by D. Krasner in his assignments of error will not be considered because they were not raised by him in the lower court and are not insisted upon in brief in his behalf. Norman Krasner insists that he was entitled to the affirmative charge. It is sufficient to say that the charge was not requested in writing. H. J. Crenshaw Co., v. Seaboard Air Line R. Co.,
It results that the judgment of the lower court is affirmed.
Affirmed.
GARDNER, C. J., and FOSTER and LAWSON, JJ., concur. *690