Trammell v. Guy

44 So. 37, 151 Ala. 311, 1907 Ala. LEXIS 477

• Court: Supreme Court of Alabama
• Decided: May 9, 1907
• Status: Published

Opinion

MoCLELLAN, J.

This suit was commenced by attachment to enforce a money demand. The defendant (appellant) is a nonresident. The writ was levied on certain lands, the property of the defendant. There was no appearance of the defendant; but it appears from the record 1hat notice by publication was given in a newspaper, and that defendant’s place of residence in the state of Texas was unknown. The judgment, which was by default, simply adjudges a recovery against the defendant for the sum claimed, and condemns the property seized to the satisfaction of the judgment.

The point is made, that the judgment does not show such a compliance with section 531 of the Code of 1896 as will support a judgment by default. The criticism is well taken. The jurisdiction, in addition to an actual levy, to warrant a judgment of default, is only obtained by the giving of the nqtice required by the section mentioned; and it has been well decided that the fact that such notice has been, given must appear in the judgment entry, else, a judgment by default cannot be rendered. — Diston v. Hood, 83 Ala. 331, 3 South. 746; Meyer v. Keith, 99 Ala. 519, 13 South. 500; Wilmerding v. Corbin Banking Co., 126 Ala. 268, 275-279, 28 South. 640. Tlie judgment must therefore be reversed and the cause remanded.

Ileversed and remanded.

Trsox, ('. J., and Dowdell and Anderson, JJ., concur.