44 Ala. 485 | Ala. | 1870
An appearance by motion of a defendant to dissolve an attachment is not a general appearance, and can not have the effect of one. — Rev. Code, p. 815, Rule 1; Lampley v. Beavers, 25 Ala. 534; Nabors v. Nabors, 2 Port. 162.
The j udgment in this case, as is shown by the transcript, ought to have been by default. The error in this respect, under the circumstances, must be regarded as clerical, and, therefore, not reversible, but the appellant must have the benfit of the proper judgment.
The cause of action is not a debt, to enforce the collection of which an attachment may issue before it is due.— Rev. Code, § 2927; Bozeman v. Rose, 40 Ala. 212. The obligation of the defendant was to deliver the cotton during the succeeding fall. The attachment was issued November 9th, 1868, before he was in default. — Add. on Contracts, 1133. It was therefore void.
A judgment by default, predicated on a void attachment, is void. — Flash, Hartwell & Co. v. Paul Cook & Co., 29 Ala. 141; Mathews, Finley & Co. v. Sands & Co., ib. 136; Stevenson v. O’Hara, 27 Ala. 362.
The judgment is reversed and the cause remanded.
