Merchants' Laclede Nat. Bank v. Troy Grocery Co.

Supreme Court of Alabama

Merchants' Laclede Nat. Bank v. Troy Grocery Co.

43 So. 208, 150 Ala. 128, 1907 Ala. LEXIS 335

CourtSupreme Court of Alabama

DecidedMarch 2, 1907

StatusPublished

Cited by3 cases

This text of 43 So. 208 (Merchants' Laclede Nat. Bank v. Troy Grocery Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Merchants' Laclede Nat. Bank v. Troy Grocery Co., 43 So. 208, 150 Ala. 128, 1907 Ala. LEXIS 335 (Ala. 1907).

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Opinion

ANDERSON, J.

This suit was commenced by an attachment in the justice court, and the record shows that the plaintiff lodged with the justice a complaint. [131]*131to which the defendant demurred, and after the demurrer was overruled, interposed a plea, to the merits. Section 562 of the Code of 1896 provides: “If the defendant appears and pleads, the cause proceeds as in suits commenced by summons and complaint; if he fails to appear.” etc. A general appearance dispenses with the necessity of a formal notice, and a waiver of any previous irregularity in the service of process.—Rosenberg v. Chaflin, 95 Ala. 252, 10 South. 521; Lamply v. Beavers, 25 Ala. 534; Moore v. Easley, 18 Ala. 619; Peebles v. Weir, 60 Ala. 413. The unconditional appearance of the defendant gave the court jurisdiction of the person and of the subject-matter of the complaint, and over which the court under the law could exercise jurisdiction, notwithstanding it' had no jurisdiction as to the attachment. After the attachment was dissolved, the defendants hating pleaded to the merits of the complaint, the suit stood as if there had been no attachment, and was but a suit upon the complaint; the necessity of a summons being dispensed Avith by virtue of defendant’s plea.

When this case was here before (Merchants’ Bank v. Troy Grocery Co., 144 Ala. 605, 39 South. 476), it appears to have been upon the refusal of the trial court to dissolve the attachment. It AAras then held that in so much as the attachment was issued before final judgment, its issuance Avas violative of the federal statute and authorities, and Avas void; that- inasmuch as it was violative of the federal statute, and AToid, the state court had no jurisdiction and that jurisdiction could not he conferred by anpearanoe of the defendant Avhether general o.r special, and to this proposition we strictly adhere. We do not understand the court to hold, however, that the plaintiff could not maintain a suit on the complaint, or that the defendant could not confer jurisdiction by appearing and pleading to the complaint. Jurisdiction cf attachment and of a suit upon a complaint is quite distinct; but inasmuch as the attachment was dissolved and dismissed, -the defendant having ansAvered the complaint and submitted to the jurisdiction of the court in that respect, which it had the [132]*132right to do, the court below had the right to proceed as if there bad never been any attachment.

There ivas no error in refusing the defendant’s motion to dismiss the case, and, as the plaintiff’s replication was a good answer to defendant’s plea to the jurisdiction, and was proven, the trial court, did not err in rendering judgment nil dicit for plaintiff, defendant having declined to plead further. The other assignment of error is not insisted upon in appellant’s brief. The judgment of the circuit court is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.

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ANDERSON, J.

This suit was commenced by an attachment in the justice court, and the record shows that the plaintiff lodged with the justice a complaint. [131]*131to which the defendant demurred, and after the demurrer was overruled, interposed a plea, to the merits. Section 562 of the Code of 1896 provides: “If the defendant appears and pleads, the cause proceeds as in suits commenced by summons and complaint; if he fails to appear.” etc. A general appearance dispenses with the necessity of a formal notice, and a waiver of any previous irregularity in the service of process.—Rosenberg v. Chaflin, 95 Ala. 252, 10 South. 521; Lamply v. Beavers, 25 Ala. 534; Moore v. Easley, 18 Ala. 619; Peebles v. Weir, 60 Ala. 413. The unconditional appearance of the defendant gave the court jurisdiction of the person and of the subject-matter of the complaint, and over which the court under the law could exercise jurisdiction, notwithstanding it' had no jurisdiction as to the attachment. After the attachment was dissolved, the defendants hating pleaded to the merits of the complaint, the suit stood as if there had been no attachment, and was but a suit upon the complaint; the necessity of a summons being dispensed Avith by virtue of defendant’s plea.

When this case was here before (Merchants’ Bank v. Troy Grocery Co., 144 Ala. 605, 39 South. 476), it appears to have been upon the refusal of the trial court to dissolve the attachment. It AAras then held that in so much as the attachment was issued before final judgment, its issuance Avas violative of the federal statute and authorities, and Avas void; that- inasmuch as it was violative of the federal statute, and AToid, the state court had no jurisdiction and that jurisdiction could not he conferred by anpearanoe of the defendant Avhether general o.r special, and to this proposition we strictly adhere. We do not understand the court to hold, however, that the plaintiff could not maintain a suit on the complaint, or that the defendant could not confer jurisdiction by appearing and pleading to the complaint. Jurisdiction cf attachment and of a suit upon a complaint is quite distinct; but inasmuch as the attachment was dissolved and dismissed, -the defendant having ansAvered the complaint and submitted to the jurisdiction of the court in that respect, which it had the [132]*132right to do, the court below had the right to proceed as if there bad never been any attachment.

There ivas no error in refusing the defendant’s motion to dismiss the case, and, as the plaintiff’s replication was a good answer to defendant’s plea to the jurisdiction, and was proven, the trial court, did not err in rendering judgment nil dicit for plaintiff, defendant having declined to plead further. The other assignment of error is not insisted upon in appellant’s brief. The judgment of the circuit court is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.

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43 So. 208, 150 Ala. 128, 1907 Ala. LEXIS 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merchants-laclede-nat-bank-v-troy-grocery-co-ala-1907.

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