| Ala. | Feb 8, 1910
— Action of detinue; judgment by default; defendant appeals, complaining that the judgment is erroneous because there was no service of summons upon him and no appearance by or for him.
Detinue is a personal action, the gist of which is the wrongful detention of personal property. — 14 Cyc. 241, and notes. In order to obtain jurisdiction to proceed to a valid judgment in such cases, the orderly and usual course for the service of process — notice of the action commenced — in personal actions, must be pursued, unless the defendant waives the right. This he
The return of the sheriff, indorsed on the summons reading to Y. M. Morrow, was in this form and phraseology: “Return of summons and complaint and execution of writ of seizure: I have executed this writ this 18 day of January, 1907, by leaving a copy of within summons and complaint with * * 200 bushels corn (then describing certain other chattels) * * * V. M. Morrow, Defendant. (Signed) J. B. Knight, Sheriff.”
Code, § 5301, reads: “The summons must be executed by the sheriff or other officer in any county, by leaving a copy of the summons and complaint with the defendant-, which fact he must return with the process.”
It is settled here that service of the summons without the complaint, will suffice if no objection is made in -the court below. — Lenoir v. Broadhead, 50 Ala. 58" court="Ala." date_filed="1873-06-15" href="https://app.midpage.ai/document/lenoir-v-broadheads-administrator-6508596?utm_source=webapp" opinion_id="6508596">50 Ala. 58. Aside from this, a return must show that the summons
In Snelgrove v. Bank, 5 Ala. 295" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/snelgrove-v-branch-bank-at-mobile-6501980?utm_source=webapp" opinion_id="6501980">5 Ala. 295, the notice read to Alfred Snelgrove and Aaron Livingston, and the return recited service on Snelgrove. The court said: “The conclusion of law, in the absence of a plea denying the fact, is that he is the individual of that name, who is intended by the notice.”
Veasey v. Brigman, 93 Ala. 548" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/veasey-v-brigman-6514469?utm_source=webapp" opinion_id="6514469">93 Ala. 548, 9 South. 728, 13 L. R. A. 541, was very similar to Snelgrove v- Bank. The return was held sufficient though it showed service on “Jack Yeasey, defendant,” whereas the process directed service upon “A. J. Yesey.” The word “defendant” was, of course, a descriptive part of the return, but the return would have been upheld in that case had this been omitted.
In Cantley v. Moody, 7 Port. 443" court="Ala." date_filed="1838-06-15" href="https://app.midpage.ai/document/cantley--co-v-moody-6529356?utm_source=webapp" opinion_id="6529356">7 Port. 443, the suit was against three defendants, and the return of the process was “executed.” The court said: “Upon looking into the record, we find the writ is returned, ‘Executed,’ by the sheriff, and must intend that it was executed on all the defendants below * *
In Colley v. Spivey, 127 Ala. 109" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/colley-v-spivey-6518692?utm_source=webapp" opinion_id="6518692">127 Ala. 109, 28 South. 574, the return, indorsed on the summons and signed by the sheriff, was: “Executed by serving a copy on the within-named defendant, except as stated beloio” (italics supplied), and there was nothing appearing below. The re
In Bartlett v. Winkler, 15 Tex. 515" court="Tex." date_filed="1855-07-01" href="https://app.midpage.ai/document/bartlett-v-winkler-4888449?utm_source=webapp" opinion_id="4888449">15 Tex. 515, the return was: “Executed, Feb. 1st, 1854, by certified of this writ and copy of petition.” It was ruled, on error from a judgment by default, Lipscomb, J., writing, that the return was sufficient.
None of our pronouncements, nor those of other jurisdictions, are in immediate point here, but, notwithstanding, they are persuasive when we come to determine whether a return denotes compliance with the statutory requirements. This return is, of course, bunglingly expressed, but viewing it with the consideration witli which this court has all along approached the construction of such official acts (McAbee v. Parker, 78 Ala. 575), we think it must be read as if the name of the defendant had been inserted after the word “with.”
If the description of the chattels is omitted, the name of the defendant would follow in consecutive order, though with space intervening, the statutory phrase, “by leaving a copy of the within summons and complaint with.” The description of the chattels has no grammatical connection with the preceding phrase, nor with the name of the defendant succeeding it. If the description of the chattels, alien so far as the grammatical connection is concerned, is omitted, the only possible criticism of the return, as presently pertinent, would be that the defendant’s name was not juxtaposed to the statutory phrase preceding it.” In Colley v. Spivey, the excepting phrase was pronounced surplusage. May not the incongruously interpolated description of the chattels in this return be, for the purpose of construction, merely transposed? We think so; and that, without doing any violence to the language of the text. When so read, the return is sufficient to have brought the de
Affirmed.