Betancourt v. Eberlin

BRICKELL, C. J. Prior to the enactment of the present statute, if it was not the duty of the court to try and determine the facts, if in the regular and usual course of procedure they should have been submitted to a jury for determination, and the parties waiving the intervention of a jury, submitted them — 465 — for decision to the court, the decision was not examinable on error—it was final and conclusive.—Etheridge v. Malempre, 18 Ala. 565; Barnes v. Mayor, 19 Ala. 707; Bott v. McCoy, 20 Ala. 578; De Vendell v. Hamilton, 27 Ala. 156; Stein v. Jackson, 31 Ala. 24. Parties are authorized by the statute, in civil cases in courts of common law jurisdiction, to waive the intervention of a jury and submit the issue of fact the case may involve to trial and determination by the court. The finding of facts may be general or special at the discretion of the court, unless one of the parties should request a special finding. Whether the finding is general or special, it has the same effect as the verdict of a jury, and if special, its sufficiency to support the judgment is open for review in an appellate court. — Code of 1876, §§ 3029-31. When the finding is special, the statute operates to open for examination the sufficiency of the facts as found to support the judgment, and casts upon an appellate court the duty of reviewing and examining the decision of the primary court upon them. The finding in the present case was special, on the -request of the appellant, the defendant in the court below, and whether the facts as found, reduced to writing and entered on the minutes, will support the judgment rendered, must be inquired into and determined. The insufficiency of the special finding is questioned first,, because it is silent as to the satisfaction of the judgment sought to be revived. Assimilating the special finding to a special verdict of a jury, we incline to the opinion that the objection would be well taken, if the satisfaction of the judgment had been an issue of fact submitted for the decision of the court. A special verdict must find directly and affirmatively every fact in issue essential to the right of recovery, or judgment upon it can not be pronounced ; it can not be aided by intendment or by referen e'e to extrinsic facts. But the verdict of a jury, whether it. is general or special, must be confined and responsive to the issue. So far as it may pass beyond the issue and-find facts either confessed or not denied, it is impertinent and bad pro tanto.—10 Bac. Ab. 353; Lee v. Campbell, 4 Port. 198; Sewall v. Glidden, 1 Ala. 52. The issues of fact in the case were presented by special pleas, but no one-of them was directed to, or1 involved the inquiry whether the-judgment was satisfied or unsatisfied. The statute declares, that if ten years elapse without the issue of execution, a judgment must be presumed satisfied, and the burden of proving that it is not, that it remains unpaid, rests upon the party seeking its revival.—Code of 1876, § 3174. If there had been a plea of payment, or any issue touching the satisfaction of the judgment, the points argued by counsel would arise. But in — 466 — the absence of such issue, the court could not determine or pass upon the fact of satisfaction. It was proper to observe, in reference to the fact, the silence which the parties had observed. The first plea assails the jurisdiction'of the court to render the judgment of which revival is sought, upon the ground that a complaint was not filed in the original action. The plea is upon its face bad. If the fact is, that in the original suit the court proceeded to final judgment without requiring the plaintiff to file a complaint, a statement in writing of the cause of action, standing in our practice in lieu of a declaration at common law, it was mere irregularity, for which on error a ' judgment by default would be reversed. But it was mere irregularity, not affecting the validity of the judgment when collaterally assailed. A scire facias for the revival of a judgment can not be defended because of matters going behind the judgment, or of errors in the course of proceedings leading to its rendition. If the court had jurisdiction, the judgment imports absolute verity. —Miller v. Shackelford, 16 Ala. 95; Duncan v. Hargrove, 22 Ala. 150. Whether, if the facts found specially would not support the conclusion of the Oity Court, that a complaint was filed in the original action, the judgment, if in other respects correct, would be disturbed, we need not decide. The conclusion of the City Court is manifestly right and proper. The want of endorsement upon the complaint by the clerk of the fact of its filing is a clerical omission. Such an endorsement would have been conclusive evidence -of the fact of filing, at any time after the proceedings had ripened into judgment. But it is not, before or after judgment, the exclusive evidence of the fact. When there is no countervailing evidence, and the complaint is found with the original file •of the papers in the cause, from which it must be transcribed when the final record is made up, forming part of it, the fact •of filing is shown satisfactorily. It may appear that the garnishment was irregular, that it did not with certainty set out the names of the garnishees, or properly describe them as partners, and for this reason, on timely application, would have been quashed at their instance. But in obedience to it, they appeared and answered, admitting an indebtedness to the defendant in attachment.. The appearance and answer, without objection, cured whatever of defect or irregularity there may have been in the writ or summons of garnishment. The appearance of a party, without objection, is a waiver of defects or irregularity in the process issuing to him, and the judgment thereafter rendered is conclusive upon him. The proceeding was merely incidental and auxiliary to the proceedings and judgment against the defendant in attach — 467 — ment, and errors intervening in the proceeding can not affect the validity of the judgment rendered against the defendant. Jurisdiction was acquired by the service of the garnishment, as full and complete as could have been acquired by a levy of the attachment on real estate, or on visible, tangible chattels, capable of manual seizure.—Code of 1876, § 3268; Thompson v. Allen, 4 St. & Port. 184; Tillinghast v. Johnson, 5 Ala. 514; Cleaveland v. State, 34 Ala. 254. It is an elementary principle, that a judgment rendered by a court having jurisdiction, not drawn in question on error, is final and conclusive between the parties and their privies, though the record may abound with errors or irregularities. The proceeding by attachment is not, as is insisted by the appellant, a proceeding in rem¡ nor is it a mere judgment on condemnation of the thing attached the court is authorized to render. The suit is personal against the defendant, against him, not against the res/ the complaint is filed in the same form, with the same and no other averments than are sustained when he has been personally served with summons to appear and answer; and the suit is subject to suspension or abatement because of intervening personal disabilities. The attachment, if the leading, is essentially original process; the commencement of suit is reckoned from its levy, and, while pending, it may be pleaded in abatement of a subsequent suit for the same cause of action. Dean v. Massey, 7 Ala. 601. The judgment rendered is personal and general, that the plaintiff have and recover of the defendant. There has been in practice no distinction observed, nor do the statutes contemplate or require that the distinction should be observed, in the form of judgment rendered in suit commenced by attachment and in a suit commenced by summons. At his election, the plaintiff may sue out upon the judgment a vendiUoni exponas for the sale of the property attached, or a fieri facias which may be levied on that property, or on any other effects of the defendant.— Garey v. Hines, 8 Ala. 837. It is apparent the statutes intend an attachment, when the original process, shall serve a double purpose, first, giving notice to the defendant, affording him the opportunity to appear and defend; secondly, the creation of a lien upon the thing attached, furnishing security to the plaintiff, if he succeeds in obtaining judgment. The judgment rendered originally is in the form of, and has the-same legal effect as, the judgments which it has been the practice of the courts to render in suits commenced by attachment, and is not void or irregular. . It is further insisted by the counsel for the appellant, that the City Court was without jurisdiction to render the original judgment — -that it is coram non judAce, because rendered without personal notice to the defendant, or notice otherwise than by — 468 — the service of the garnishment. This- proposition is near akin to that we have just considered. A judgment or decree is not obligatory, unless the court rendering it has jurisdiction of the subject-matter, and of the parties to be bound or affected. Notice is an essential element of all judicial proceedings which are to operate upon parties personally.—McCurry v. Hooper, 12 Ala. 823; Eslava, v. Lepretre, 21 Ala. 504. It can not be doubted that it is within the scope of legislative power to prescribe the mode of bringing parties before the courts of the State — the mode of giving notice to them of the pendency of judicial proceedings in which they may have rights and interests involved. 'Whatever may be the extra-territorial opei’ation of such regulations, though they may not be operative as to the citizens of other States, yet, they are binding upon the citizens of the State in which they are enacted, and affect all property found within its jurisdiction. Notice can not be dispensed with by legislative enactment. A statute which would authorize a judgment or decree upon proceedings purely ex pcvrte, would' be violative of the constitution and void. But it is quite a mistake to suppose the notice must of necessity be personal, given by the personal service of process citing the party to appear and. defend. It is enough, if it is fairly and reasonably probable that the notice prescribed will apprise the party proceeded against of the pendency off the suit, and. of the consequent necessity for his appearance to make defense, if he is unwilling to submit to judgment.—Empire City Banlc, 18 N. Y. 215. There are many exceptional cases, in which a species of notice denominated eonstruetive, as distinguished from actual notice, the notice given by personal service of process, is authorized by statute. In these cases, there would be indefinite delays in the administration of justice, the equivalent of a denial of justice, if some other mode of notice than the personal service off process was not authorized. In these cases, the legislative power must elect between the evils of delaying, or denying, or embarrassing the administration of justice, and the opposite evils of the probability or possibility of a judgment or decree rendered upon an exponte hearing. The requirements of the constitution are satisfied, if the mode of notice prescribed is adapted to inform the parties to be affected of the pendency of the proceedings, giving them opportunity to appear and defend. Erom the earliest existence of organized government here to the present time, we have had statutes authorizing the commencement of suits at law, in particular cases, by attachment of the property or effects of the defendant, and their prosecution to final judgment, which within the State would bind the defendant personally, and would be of the same effect and dignity, — 469 — as it wo aid have been, if rendered upon the personal service of process. If the attachment was not sued out because of the residence of the defendant without the State, it is only within the last few years, since the rendition of the judgment now assailed, that any other notice was required than such as is imputable from the levy of the writ. The statutes have proceeded upon the reasonable and just presumption, that the owner has actual or constructive possession of his property and rights or credits, which can not be disturbed by a seizure or levy of legal process, without his knowledge, or without information coming to him, if he is ordinarily diligent in reference to his own interests. The seizure or levy will consequently operate as notice to him of the pendency of the suit, and afford him full opportunity to appear and defend. The validity of the statutes, and of judgments rendered in pursuance to them, has not heretofore been questioned, though numerous cases have been before the courts in which the judgments rendered are nullities, if the statutes are violative of the constitution. The case must be clear, there must be no room for doubt, before a court could now pronounce the statutes and judgments rendered under them inoperative and void. Ve do not doubt that the statutes are consistent with the constitution, and that judgments rendered in proceedings had under them, as between our own citizens, and as to property found in the State, are of the same force and effect, when drawn in question collaterally, as if they had been rendered upon personal service of the most formal process.—Miller v. Pennington, 2 Stew. & Port. 399; Bigger v. Hutchings, Ib. 445. We find no error in the record, and. the judgment of the City Court must be affimed.