Memphis & Charleston Railroad v. Whorley

SOMEBYILLE, J. — These two causes were submitted in connection, the one being an appeal from a judgment against the appellant as garnishee, and the other a subsequent appeal from the same judgment, as amended nunc pro' tunc. ■ When the cause was last before us for consideration, it was held that the judgment-entry against the garnishee could be amended at a subsequent term, nimcpro tunc, so as to make it recite the amount of the original judgment against the debtor, which had been omitted by clerical misprision.— Whorley v. Memphis & Charleston R. R. Co., 72 Ala. 20. The amendment having been made in accordance with the ruling in that case, we are requested to review the conclusion at which we then arrived. We have done so, and are of opinion that the case should be adhered to, as being in harmony with our past decisions touching the subject of amendments of this nature. Taylor v. Harwell, 65 Ala. 1, 15; Nabers v. Meredith, 67 Ala. 833; Wilkerson v. Goldthwaite, 1 St. & Port. 159; Evans v. St. John, 9 Port. 186; 1 Brick. Dig. p. 78, §§ 129 et seq. There can be no doubt of the fact, that an appeal will lie from the judgment rendered, or amended, nimcpro tunc, and that the judgment of the court sustaining the motion to amend may be made a ground for the assignment of error. The appeal is not taken, as supposed by appellee’s counsel, from the [270] act of the clerk making the correction, which is merely ministerial ; but it is from the judgment of the court, under authority of which the clerk has done the act. — Ex parte Gilmer, 64 Ala. 234: Lilly v. Larkin, 66 Ala. 110; 1 Brick. Dig. 78, §§ 129 et seq. It is insisted that the answer of Bradley, which purports to be in the name of the Memphis & Charleston Railroad Company, is insufficient to sustain the judgment rendered against the company as garnishee, because it does not appear that he had any authority to make the answer. Our decisions are very clear in holding that a judgment by default against a corporation can not be sustained by the sheriff’s official return, or even the clerk’s statement, characterizing the person upon whom the summons and complaint were served as agent of the corporation. It must appear from the record that satisfactory proof of such agency was made in the court below, showing that the person, upon whom such process was served, occupied such a relation to the defendant corporation, as to bring the defendant into court, within the provisions of the statute authorizing service on certain designated agents. — Southern Express Co. v. Carroll, 42 Ala. 337; Talladega Ins. Co. v. McCullough, Ib. 667; Oxford Iron Co. v. Spradley, Ib. 24; M. & E. Railroad Co. v. Hartwell, 43 Ala. 508. So, for a like reason, the statute which authorizes process of garnishment to' issue against private corporations, provides that no person shall answer such process in behalf of such corporation, “unless he shall make affidavit that he is the duly authorized agent of such corporation to malee such answer.” — Code, 1876, § 3222. The answer of Bradley fails to comply with this statute. Conceding that this position is well taken, its force becomes totally unavailing, as is admitted in argument, provided there has been an appearance in the court below by the garnishee. This would constitute an affirmance of the agent’s authority to make the answer, and would be a waiver of any defect in the process by which the garnishee was brought into court. It is not necessary that we should consider the question, argued by appellant’s counsel, as to whether the judgment-entry against the garnishee shows such appearance. This precise question is discussed in Hunt's Heirs v. Ellison's Heirs, 32 Ala. 173, where all the authorities are collated, with a conflict of opinion among the judges who sat in the cause. It is enough for us to say, that the several judgment-entries, showing repeated continuances of the garnishment cause, recite the fact that “the parties came by attorney,” and that this clearly constitutes a general appearance by the garnishee, especially in view of the statement that’ these continuances were by consent.- — Hunt v. Ellison, 32 Ala. 173, supra; Collier v. Falk, 66 Ala. 223. [271] These entries were a part of the record of the cause, and, as such, were properly admitted as evidence of an appearance by the garnishee, in the proceedings taken to amend the judgment nuno pro tuno, in the court below. We can see no error in the record, and the judgment in each case is affirmed.