Wilmerding v. Corbin Banking Co.

126 Ala. 268

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

HABALSON, J.

In September, 1895, The Corbin Banking Company, a non-resident of this State, sued out before the clerk of the city court of' Talladega, under section 3923 of the Code of 1886, an attachment against .Mrs. E. E. Wilmercling, the appellant, another non-resident of the State, which was returned to said city -court, and on the 13th November following, without appearance of, or personal service on, defendant, a personal . judgment was rendered against her, on what purported .to be a non-resident publication. This attachment was .levied by the sheriff on certain lands lying in this State, .alleged to belong to. defendant. The judgment entry, .after reciting the levy, proceeds-: “'And it .being further ; shown to the court that the order of publication heretofore made in this case, notifying and requiring the defendant to appear and plead to or demur to the plaintiff’s complaint in this case, was duly published in the •‘News Reporter,’ a newspaper published iii Talladega ■ county, Alabama, for four consecutive weeks, commencing on the 14-th September, 1895, and that a copy of said • publication was forwarded by mail to the place of resi- ■ dence of said defendant, and. the said defendant being-now called makes default; it is therefore considered by . the court on sworn' proof submitted to the court that the plaintiff have and recover -of the defendant the sum of ■' $187.65, the damages claimed in this complaint, as well as all tké costs of this case, for which let execution is-sue.” Then follows an order of condemnation and sale ■ of the lands levied on, for the satisfaction of the judg- • ment rendered, with direction to the clerk to issue to the sheriff a writ of venditioni exponas to sell all the right, : title and interest -of defendant in the -said lands and apply the proceeds of sale to the satisfaction of the judg- ' ment for damages and costs.

This notice is not in accordance with the require- ■ men-ts of the statute, in such cases (Code, § 531 [2936]) which requires the clerk, after the levy, to “cause a notice of the attachment and levy on the defendant’s prop■■erty to be advertised, once a week for three consecutive weeks, in some newspaper, a copy of which must be -sent by mail to the defendant, if his residence is known or can be ascertained; and if such publication is perfected twenty days before the next term of the court, the case ¡ shall stand for'trial at that term, otherwise at the sueceeding term,” etc. This notice as here recited, instead of following the statute, seems to have been an attempt to follow rule 22 (25) of chancery practice as to service on non-residents.

At a regular term of the city court in September, 1899, the plaintiff in attachment moved the court to amend said judgment, nunc pro tuno, so as to make it recite that The Corbin Banking Company, the plaintiff in attachment, was a partnership, and to set out the names of the partners composing the firm; to nufke it further recite the notice of the attachment and levy given, according to the requirements of said section 531 (2936), and to correct said judgment, generally, from a personal judgment against the defendant, to one simply for condemnation and sale of the lands levied on to pay a debt of the defendant in attachment ascertained to be $187.65, and the costs of the proceeding.

The defendant in attachment, Mrs. Wilmerding, appeared specially by attorney for the purpose only of resisting this motion to amend said judgment mmo pro tunc. The judgment on the trial of this motion was amended as proposed, to which ruling the defendant excepted, as she did separately and severally to the introduction of evidence upon which the plaintiff sought to have said judgment corrected.

The object of a judgment mmo pro tunc is not the rendering of a new judgmeilt and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in the place of the one it did erroneously render, nor to’supply non-action by the court, however erroneous the judgment may have been.—Dumas v. Hunter, 30 Ala. 188; Browder v. Faulkner, 82 Ala., 257; Robertson v. King, 120 Ala. 459. “The power to amend nunc pro tunc is not revisory in its nature, and is not intended to correct judicial errors. Such amendment ‘ought never to be the means of modifying or enlarging the judgment, or the judgment record, so that it shall express something which the court did not pronounce, even although the-proposed amendment embraces matter which ought clearly to have been pronounced.’ However erroneous, the express judgment of the court cannot be corrected at a subsequent term.”—Browder v. Faulkner, supra; Brown v. Barnes, 93 Ala 58; 1 Freeman on Judgments, §§ 71, 72.

In this case a personal judgment by default ivas rendered against the defendant, as distinct as one could have 'been rendered against her in a suit on a promissory-note on personal service. Any effort to make it appear that the court did not intend to pronounce this judgment is, necessarily, futile. There is no rule of law to justify or authorize an appellate court to hold that a lower court did not intend to do what its solemn adjudication in plain terms says it did do. But the rule of construction is exactly the contrary,—to presume the court intended to do what its order plainly declares it did do. The proceeding to correct this judgment, if sanctioned, would be to allow the court below to revise it® own judgment, to modify it so as to make it express something which the court did not pronounce, and, really, to expunge from the record a judgment it did render, which was erroneous, and substitute therefor another and very different judgment. The scope and extent of the statute of amendment of judgments is to “amend any clerical error, mistake in the calculation of interest,, or other mistake of the clerk, -when there is sufficient matter apparent on the record or entries of the court to-amended by.”—Code, §§ 3334, 3337; Tippins v. Peters, 103 Ala. 196; Brown v. Barnes, supra.

We need not notice the other grounds urged against the amendment of this judgment. Whether they are-well taken -or not cannot affect the result, since the judgment as rendered is one, as we have seen, incapable of amendment nunc pro tunc, in the manner proposed,, ■without reference to these other objections.

The judgment of the lower court will be reversed, and one will be here rendered dismissing said motion -out of this court,.and the court below, at the cost of the appellee.

Reversed and rendered.

No. 579.—In this case between the same parties, relating to the same judgment, the defendant moved the court to sot aside and annul the judgment rendered, on grounds set out in the motion therefor. Attached to her motion, and as part thereof, she exhibited the affidavit for attachment, bond, writ, complaint and judgment rendered in the cause. The grounds oh which she based her motion, amongst others, were that said judgment is a nullity, being void on its face; because she had no notice of the issuance and levy of said attachment;, that the attachment was issued in a partnership name, without setting out the individual names of the partners, as they are set out in the attachment bond, and because the court had no jurisdiction of the subject matter or parties, or either of them, in said cause.

During the pendency of this motion, and before it was heard, the plaintiff moved the court to amend said original judgment in the cause, nunc pro, tunc, in a manner, if proper to be allowed, and if allowed, to cure the defects in said original judgment, which motion was-first entertained by the court, and on trial thereof, said judgment was accordingly amended. That is the proceeding in the foregoing case No. 578, which we have just considered. The motion in this case was after-wards tried and denied. An appeal was taken from the1 judgment of the court rendered on the trial of each of said motions, and on separate transcripts were here submitted together, to be disposed of at the same time.

Section 531 of the present Code, (section 2936 of the Code of 1SS6), provides that “when an attachment is sued out against a non-resident of the State, the writ shall be returned to the clerk of the court as soon as levied upon the property of the defendant, and thereupon the clerk shall cause a notice of the attachment and levy on the defendant’s property to be advertised once a week for three successive weeks, in some newspaper, a copy of which must he sent hy mail to the defendant, if his residence is known or can he ascertainedj and .if such publication is perfected twenty days before the next term of the court, the case shall stand for trial at that term; otherwise at the succeeding term, or any other term, after the 'perfection of such publication, twenty days prior thereto.” The italicized parts of the above section are ours, for purposes that will appear. The judgment entry of this statutory notice as recited is: “And it being further shown to the court that the order of publication heretofore made in this case, notifying and requiring the defendant to appear and plead to or ■demur to the plaintiff’s complaint in this case was duly published in the 'News Reporter/ a newspaper pub: lislied in Talladega county, Alabama, for four consecutive weeks, commencing on the 14th September, 1895, and that a copy of said publication urns forwarded by mail to the place of residence of said defendant, and said defendant being now called, makes default, it is therefore considered by the court, on sworn proof submitted to the court, that the plaintiff have and recover of the defendant the sum of f187.65, the damages claimed in this complaint, as well as all the costs of this case, for which let execution issue.” Then follows an order that all the right, title and interest of the defendant in and to the lands levied on under and by virtue of said attachment, be condemned and sold to the satisfaction of said judgment for damages and costs; and the clerk was instructed to issue to the sheriff of the county a writ of venditioni exponas, ordering him to sell tile right, title and interest of the defendant in and to the said lands, and apply the proceeds of sale to the satisfaction of said judgment for damages and costs. (The italics in this entry are ours).

How far the publication is made, according to the recital in the judgment entry, falls short of the one required by the foregoing statute, the italicized parts of the statute and the judgment entry make clear. It does not appear from the recital in the judgment that any notice of the attachment and levy, as prescribed by the statute, were ever made or mailed to the defendant, but that a notice was published notifying defendant to appear and plead to or demur to plaintiff’s complaint, and that a copy of such notice without being addressed to defendant, was sent to her place of residence, which appears to have been Brooklyn, New York. From its mailing and address any other person in that great city might have claimed the paper as well as the defendant. It was an estray without an owner to lay claim, and we cannot presume that it reached the defendant. So far, then, as for what the notice contained and its mailing to defendant, the statute requiring the notice and mailing was in no sense complied with. In law it signified no more than if no notice of any character had been attempted to be given. What followed, therefore, in the way of a personal judgment against defendant, and the order of condemnation of her land by sale for the payment of the same,, ■was done without any notice to defendant, and we have presented a case where the property of a non-resident defendant was levied on and sold without notice to her to appear and object to its condemnation,—a purely ex parte proceeding.

The question arises whether or not the notice required by the statute of this State in an attachment proceeding is jurisdictional, in the sense that without such notice the court is without authority to render judgment against the defendant and enter an order condemning, her lands levied on for the payment of the same.

Some adjudications, including that of the Supreme Court of the United States, hold as the States have-power over all property within their territory, that in a proceeding purely in rem, as they hold a levy on property of a,nón-resident defendant in an attachment suit to be, a State court has jurisdiction, when the res is brought into the power of the court by seizure under its process and its authority is complete over the subject matter; and some of these courts go to the length of holding that the court may order the sale of the property of a non-resident defendant in attachment even without sufficient or any publication of notice. Mr. Drake, in his Avork on Attachments, . classes Vermont, NeAV York, Ohio, Missouri and Iowa, and the Supreme Court of the United States, as courts holding to this vieAv: whereas, the court of Maryland, Illinois, Wisconsin, Nebraska and Michigan are classed as holding to the.contrary Anew,—that a judgment rendered with•out notice, personal .or constructive, to tlie defendant, ■or appearance by him, is wholly void, though property -be attached.—Drake on Attachments, § 448.

In a case of-recent impression in this court, we took* the view held 'by the latter class of States.—Pullman Palace Car Co. v. Harrison, 122 Ala. 149. In that case we said: “The remedy by attachment was unknown at the common law, and derives its existence from -statutory enactment; and in consideration of its harshness and extraordinary character courts are generally, in the absence of any statutory provision regulating their construction, inclined to construe the statutory provisions creating it strictly, in favor of those against whom it may be employed. And on account of its origin, the jurisdiction of the courts invoked to enforce this remedy is placed upon the same footing with courts of special or limited jurisdiction, with no presumptions in favor of their jurisdiction in cases arising under the attachment laws.”

In Haywood v. Collins, 60 Ill. 328, it is said: “The .general jurisdiction of the circuit courts is over all matters and suits at common law and in chancery. When acting within the scope of its general powers, a circuit court is a court of superior jurisdiction. The rule is that nothing -shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so.—Peacock v. Bell, 1 Saund. 69. But when a court exercises a special statutory and extraordinary power, it stands upon the same ground and is governed by the same miles as courts of limited and inferior jurisdiction. The rule, then, is that nothing shall be intended to be within the jurisdiction-but that -which is expressly so alleged. In proceedings by attachment, is the circuit court acting within the scope of its general powers, or is it exercising a special statutory power? It will not be contended that, at common law, this summary and extraordinary remedy could be pursued. It -exists and is conferred alone by statute, and is in derogation of common law. * * * When there is no personal service, the statute requires that there must be notice 'by publication. This is as essential to jurisdiction as the issue of the writ and the levy upon property.” Clark v. Bryan, 16 Md. 171; Anderson v. Coburn, 27 Wis. 558; Wescott v. Archer, 12 Neb. 345; King v. Harrington, 14 Mich. 532; Miller v. Babcock, 29 Mich. 526; 1 Wapple on Attachm., 603; Wade on Attachm., § 38; Shinn on Attachm., § 127.

These principles seem to necessarily follow from our Declaration of Rights, (Art. I § 7), providing that no person shall “be deprived of his life, liberty or property, but by due process of law.” “Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears upon the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.”—Zeigler v. S. & N. R. R. Co, 58 Ala. 594; Wilburn v. McCalley, 63 Ala. 436, 443.

To authorize a judgment of condemnation and sale of the property of a non-resident, levied on by attachment, a statute of this State, quoted above, has prescribed a notice to be given to defendant by publication, before further proceedings shall be had in the cause. Code, § 531 (2936). It does not appear that this notice as required by statute was ever given. We are constrained to hold, that the judgment of condemnation was without due process of law and is wholly void on its face, and the court below should have so declared. A judgment will be here rendered, reversing the judgment below, and vacating and annulling the original judgment against the defendant, and the order of sale of her property in said attachment proceedings,