Southern Railway Co. v. Ward , 123 Ala. 400 ( 1898 )

HARALSON, J.

It appears from the statement of facts, that there were six proceedings in the city court, viz., a suit by summons and complaint by B. M. Align against W. P. Bewley, and a garnishment suit in aid thereof against the appellant company, prior in point of time to the others that followed; second, a suit by summons and complaint by the appellee, W. P. Ward, against said defendant, and a garnishment in aid thereof, against the same company, which proceedings were subsequent to the said original suit of said B. M. Allen, but prior in point of time to the others that followed; and, third, an ancillary attachment sued out by said B. M. Allen against said defendant, Bewley, on the ground that he was a non-resident, which was executed by summoning the said appellant company as garnishee.

From this statement it is clear, that i-f the garnishment issued out of the justice’s court in aid of the original suit in that court, of Allen against defendant, Bewley, had been made effectual by proper judgment against the garnishee, it would-have been superior to the garnishment by the- appellee, Ward; but, it is admitted that in the Allen case, service of process was never had on the defendant, and he never appeared therein. The defendant being a non-resident- and never having been served or never having appeared, the plaintiff had no authority to take a personal judgment against him, and if not, no judgment of condemnation of the fund in the garnishee’s hands could have been rendered.—Brake v. Curd Sinton Mfg. Co., 102 Ala. 339; Byars v. Baker, 104 Ala. 173; Exchange N. Bank v. Element, 109 Ala. 270. In the case last cited, departing from the rule theretofore prevailing-in this State, it was held, that an attachment against a non-resident, when-executed by the levy on property or by garnishment against defendant’s debtor, was a proceeding in the nature of a proceeding in rem, rather than that of a proceeding in personam; that the judgment rendered must correspond to the nature of the proceeding; that of necessity, it must ascertain and declare the amount of the debt, claim op demand sought to be enforced by attachment, and that this must be ascertained and declared in the same mode and form as if the suit was iii personm\ etc.'

The proceedings before the justice are not -fully set out, but results of such proceedings are merely stated in the answer of the garnishee. If, however, the judgment rendered against the defendant by the justice in favor of Allen, was a judgment in personam, then according to our more recent adjudications, it was void, and could not become the foundation of the judgment afterwards rendered against the garnishee; and in such case, the judgment of the appellee, Ward, against defendant on personal service, and the one thereafter rendered -in his favor against the garnishee, would be superior to the Allen garnishment. But the contention of appellant, — to state it in tlie language of its counsel, — is that “the original garnishment was not void ab initio; but, on the contrary, created an inchoate lien on' the fund in the garnishee’s hands, subject to be forfeited on the obtaining of a valid judgment against the'non-resident defendant, Bewley. This judgment Avas obtained"as the result of securing legal service of process on him by attachment.” The A'ice of this contention is, that it assumes that the levy of the attachment by sendee of the AArrit of garnishment, Avas the equivalent and answered the purpose of personal service on defendant or appearance by him. But such an execution of the attachment did not, according to o.ur later decisions, take the place of personal service on or appearance by defendant, and could not support a personal judgment against defendant. Nor did the plaintiff, Allen, rely on the garnishment in the original suit; for, recognizing the fact that it AA as unavailing to take the place of service, he sued out his ancillary attachment. If he had regarded the execution of the Avrit of garnishment as the equivalent of personal service, as formerly it aaus held to be, he would haA'e proceeded to judgment in his case, without resort, afterwards, to the Avrit of attachment and its execution by garnishment process on appellant, as a foundation to condemn the fund attached. This was all that Avas open-to him. Whatever rights, therefore, he gained-against the defendant and to,the fund in the hands of the garnishee, arose out of the attachment and its execution by garnishment Avrit on appellant, and not out of his original suit by summons and complaint, and garnishment in add thereof. His tAvo proceedings were distinct, in Avliieh separate results were proposed, and might be attained.—Francis-Chenoweth H. Co. v. Bailey, 104 Ala. 566. Allen, therefore, acquired no lien on, and had no right to the condemnation of the fund except under his attachment, and this Avas subsequent to the garnishment and the lien of the appellee thereunder, made effectual by his judgment against defendant on personal service, and the condemnation of the fund in appellant’s hands to pay the same.

Affirmed,