Porter & Co. v. Godfrey

BROWN, J. The appellant sued out a writ of detinue before a justice of the peace against E. J. Godfrey for the recovery of certain specific personal property which, as the officer’s return on the writ shows, was seized under the writ and return thereof made to the justice. The transcript of the proceedings before the justice recites the following: “This cause coming on to be heard, the defendant ma.de and filed an affidavit that R. L. Hunter owns the property or wire sued for, and prayed for process to to issue to said Hunter, whereupon by agreement in open court notice to the said Hunter was waived, and E. H. Hill appeared for Hunter and the case was continued generally until the 9th day of April, by consent of parties.” The transcript further shows that Hunter appeared in person and by his attorney on the 9th of April, 1913, the case was tried and was held under consideration by the justice until the 16th day of April, when judgment was rendered against Hunter for the property, the subject of the controversy here. The time for appeal having expired, Hunter on the 28th day of May removed the case to the circuit court by statutory certiorari, where a judgment was rendered against the appellant for the costs. (1) It thus appears from the record before us that the issue between the claimant and the plaintiff was tried in the justice court and likewise in the circuit court without the filing of an affidavit by the claimant or the giving of a bond as required by the statute. — Code, § 3792. The interposition of a claim to property levied on in such cases, by the filing of the statutory affidavit and bond, is jurisdictional, and in the absence of this essential step in the proceeding the court is without jurisdiction to render [568] any judgment whatever; the proceeding is coram non judice and void.—Hall & Brown Co. v. Haley Furniture Co., 174 Ala. 190, 56 South. 726; Baggett v. Mason, 145 Ala. 664, 39 South. 728; Mobile Life Ins. Co. v. Teague, 78 Ala. 147; Ballard v. Mayfield, 107 Ala. 400, 18 South. 29; House v. West, 108 Ala. 355, 19 South. 913. (2) The judgment of the circuit court was therefore void, and will, not support the appeal.—Adams v. Wright, 129 Ala. 305, 30 South. 574; Illinois Central R. R. Co. v. Burleson, 4 Ala. App. 384, 59 South. 230; Gunter v. Mayson, 125 Ala. 644, 27 South. 843; Central of Georgia R. R. Co. v. Coursen, 8 Ala. App. 589, 62 South. 977; Baggett v. Mason, supra; 7 Mayf. Dig. 29. Appeal dismissed.