Canty v. Sims

BRICKEN, P. J. On the 9th day of November, 1922, B. F. Sims (appellee) appeared before J. M. May, a justice of the peace for Pike county, and made an affidavit that Allen Canty (appellant) was justly indebted to the said Sims, “and that this attachment is not sued out for the purpose of vexing or harassing the said defendant, or other improper motives.” On said day said justice of the peace issued a general writ of attachment, command [470] ing the sheriff, or any constable oí said county, to attach so much of the estate of Allen Canty as would be of value sufficient to satisfy the complaint and cost; an attachment bond having been executed by B. F. Sims and surety, and approved by said justice on said date. The writ of attachment bears the following indorsement: “Received in office- 19 — . J. E. Craft, Constable. “I have executed this writ this -day of 19 — , by attaching the following: One cow, white and dun, one bull calf, white and dun, 2 bar hogs, white and black, 2 bar hogs, solid black, 25 bushels of corn, more or less, one 2 roller cane mill and 1 kettle, and written notice of the above levy was this day given by me to the said-, defendant. “-, Constable.” Justices of the peace have jurisdiction to issue attachments in the cases mentioned in sections 6172 and 6173 of the Code of Alabama 1923 (section 2925 of Code 1907), where the amount claimed does not exceed $100. The affidavit made before the justice of the peace did not set out a single ground of attachment as provided in section 2925 of the Code of Alabama 1907. The writ of attachment, not being issued in any case authorized by law, was of course void. Furthermore, there is no signature of any officer showing that the attachment was ever executed. It does not appear from anything in this record that the justice of the peace ever acquired jurisdiction of the person of Allen Canty, the defendant in attachment. It must affirmatively appear that the justice had jurisdiction of the person and of the subject-matter of the suit. If the Writ of attachment had been a valid writ, then jurisdiction could have been acquired by the justice through a valid execution of that writ, and this the writ fails to show. Any judgment rendered in this proceeding was void for want of jurisdiction. The appeal from the justice of the peace court to the circuit court of Pike county did not admit jurisdiction. Burgin v. Ivy Coal & Coke Co., 127 Ala. 657, 29 So. 67. Under the record in this case we are unable to say whether there was an appeal to the circuit court of Pike county from the justice court of J., M. May or not. The appeal bond contains the statement: “Sealed with our hands and dated this-day of 1922.” .Just above the signatures of the obligors of said bond is the statement: “Taken and approved this 16th day of November, 1922.” Down in the left-hand corner of said bond appeal’s the following: “J. M. May, J. P. Filed April 16, 1923, J. H. Jinright, Clerk.” Whether this bond was tendered to, and approved by, the justice of the peace within five days from the rendition of any judgment by him we are unable to say. Section 8780 of Code 1923 (section 4716 of Code 1907) provides: “When an appeal is taken, the justice must return all the original papers of the cause, together with a statement, signed by him, of the case and the judgment rendered by him, to the clerk of the court to which the appeal was taken, within ten days after the taking of the appeal.” The appeal bond upon which the appeal to the circuit court of Pike county seems to have been founded was not filed in that court until the 16th day of April, 1923, some five months after the 16th day of November, 1922. No statement of the case and the judgment rendered by the justice was signed by him and filed in the circuit court of Pike county as required by law. No complaint was ever filed in the circuit court as required by law. Simmons et al. v. Titche Bros., 102 Ala. 317, 14 So. 786; Southern Express Co. v. Boullemet & Perkins, 100 Ala. 275, 13 So. 941; Richmond & Danville R. R. Co. v. Jones, 102 Ala. 212, 14 So. 786. In cases df appeal from a justice court, the jurisdiction of the circuit court is dependent on the statutes, and, when these statutes are not complied with, the circuit court acquires no right or power over them. All persons are entitled under the Constitution to demand due process, and courts of this state have no authority to render a judgment and deprive any person of his property except upon process authorized by law. The judgment of the lower court must, therefore, be reversed and the cause remanded. Reversed and remanded.