Rhodes v. Sewell

BRICKEN, P. J. On the 11th day of November, 1921, R. F. Sewell filed an attachment affidavit and bond in the circuit court of Lawrence county. The writ - was duly executed by the proper officer. The defendant, George Rhodes, Jr., appeared and filed a replevy bond and a plea denying any indebtedness to the plaintiff in attachment; also a plea of payment. At a subsequent term of the court the ease was tried by the court without a jury. It does not appear that any complaint was filed. In fact, the brief of counsel informs us that no complaint in the case was filed. There is no complaint in the record. A judgment was rendered by the court below against the defendant in attachment, and he brings the case here by appeal. *442 The courts of this state adhere to the rule that a complaint that does not show a cause of action is insufficient to support a judgment, and a judgment rendered thereon is ordinarily void. L. & N. R. R. Co. v. Mason, 4 Ala. App. 353, 58 So. 963. The attachment and the suit are distinctive matters, and any error, or irregularity' in the former cannot affect the latter. The suit should be tried and determined upon its own merit, without any regard to the attachment. Elliott v. Mitchell, 3 G. Greene (Iowa) 237-239. Neither the affidavit for an attachment nor the order of attachment is any part of the pleadings in the action. Bundrem v. Denn, 25 Kan. 430. Section 6209 of the Code 1923 specifically requires the plaintiff in attachment to file a complaint within a specified time. The cases hold that the provision regarding the time in which the complaint be filed is directory and not mandatory (Perkerson v. Snodgrass, 85 Ala. 137, 4 So. 752), but we are not aware of any decision holding that a eomi>laint may be dispensed with entirely. Our conclusion is that the court below had no jurisdiction to render a judgment against the defendant in attachment without the filing of a complaint. The courts have no more power, until their action is called into exercise by pleadings, to render judgment in favor of a person than they have to render judgment against a person until he has been brought within their jurisdiction. . There is no principle better settled than that a judgment or decree cannot be entered in the absence of pleadings upon which to found the same. The rule is well stated in Waldron v. Harvey, 54 W. Va. 608. 46 S. E. 603, 102 Am. St. Rep., 959, as follows: “A decree is a conclusion of law from pleading and proofs, and where there is a failure of either pleading or proofs there can be no decree. Kenneweg [Keneweg] v. Schilansky, 47 W. Va. 287, 34 S. E. 773; Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. 553. A decree, or any matter of a decree, which has no matter in the pleading to rest upon is void, because pleadings are the very foundation of judgments and decrees. ‘Matters not charged in a bill or in the answer, and not in issue in the cause, are not proper to be considered on the hearing.’ Hunter v. Hunter, 10 W. Va. 321. There must not only be jurisdiction as to the person affected by the decree by having him before the court by process or appearance, but there must be jurisdiction of the matter acted upon by having it also before the court in the pleadings. Multitudinous cases attest this elementary axiom of ' jurisdiction. If either is wanting, the decree or judgment is void, not merely voidable or erroneous.” - See, also, Sache v. Wallace, 101 Minn. 169, 112 N. W. 386, 11 L. R. A. (N. S.) 803, 118 Am. St. Rep. 612, 11 Ann. Cas. 348; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914. Our opinion is, and we therefore hold, that the judgment rendered by the court below was eoram non judice and void; that it will not support an appeal; and that we must notice this ex mero. Porter & Co. v. Godfrey, 14 Ala. App. 566, 70 So. 204. For that reason the appeal is dismissed. Appeal dismissed.