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151 Ala. 311

Trammell v. Guy

Supreme Court of Alabama

Decided May 9, 1907

Supreme Court of Alabama · decided 1907-05-09

Clair Circuit Court. Heard before Hon. John Pelham. Attachment by H. B. Guy against L. B. Trammell, a non-resident defendant, with notice by publication. From a judgment by default which fails to recite the fact that notice by publication was given, the .defendant appeals.

Cited by 3 later decisions — most recently April 1915

3 state decisions

Relies on Wilmerding v. Corbin Banking Co. · Diston & Sons v. Hood · V. & A. Meyer & Co. v. Keith

Good law ✅— No negative treatment on recordhow we know

Keversed and remanded · Decided 1907-05-09

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MoCLELLAN, J.

¶1This suit was commenced by attachment to enforce a money demand. The defendant (appellant) is a nonresident. The writ was levied on certain lands, the property of the defendant. There was no appearance of the defendant; but it appears from the record 1hat notice by publication was given in a newspaper, and that defendant’s place of residence in the state of Texas was unknown. The judgment, which was by default, simply adjudges a recovery against the defendant for the sum claimed, and condemns the property seized to the satisfaction of the judgment.

¶2The point is made, that the judgment does not show such a compliance with section 531 of the Code of 1896 as will support a judgment by default. The criticism is well taken. The jurisdiction, in addition to an actual levy, to warrant a judgment of default, is only obtained by the giving of the nqtice required by the section mentioned; and it has been well decided that the fact that such notice has been, given must appear in the judgment entry, else, a judgment by default cannot be rendered. — Diston v. Hood, 83 Ala. 331, 3 South. 746; Meyer v. Keith, 99 Ala. 519, 13 South. 500; Wilmerding v. Corbin Banking Co., 126 Ala. 268, 275-279, 28 South. 640. *313Tlie judgment must therefore be reversed and the cause remanded.

¶3Ileversed and remanded.

Trsox, ('. J., and Dowdell and Anderson, JJ., concur.
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