Smith v. Moore , 35 Ala. 76 ( 1859 )

A. J. WALKER, C. J.

The bill is filed by a simple-contract creditor, having no judgment or lien. The law is settled in this State, that the equity of the bill cannot be maintained upon the ground that the debtor resides in another State. — Saunders & McLaughlin v. Watson, 14 Ala. 198; Reese & Heylin v. Bradford, 13 Ala. 837. Nor can the equity of the bill be maintained upon the ground, that the court ought to take jurisdiction in analogy to the proceeding by attachment at law; for that doctrine applies only to cases where the complainant’s demand is equitable, or there is some special cause for equitable interposition. — Kirkman v. Vanlier, 7 Ala. 217; Davenport v. Bartlett & Waring, 9 Ala. 179.

[2.] If the equity of the bill can be maintained at all, it must be upon the authority of sections 2954-56 of the Code. The proceeding is not conformable to those statutes. Neither the affidavit, nor the bond, preliminary to the issue of attachments, was given; nor was an attachment asked or issued. But an injunction was prayed for, and obtained; and it is contended, on the authority of Hartley v. Bloodgood, 16 Ala. 233, that the court may bring the equitable assets under its control, as well by an injunction, as by an attachment. The chancellor followed that decision, while denying its correctness, and gave the complainant relief. The decision was made in reference to the act of 1846, which was repealed by the adoption of the Code. It has never been adopted as a rule controlling the jurisdiction and operation of the courts under the sections of the Code giving authority to proceed by attachment in certain specified cases ; but, on the contrary, this court has departed from it, and has adopted the rule, that there must be a substantial conformity with the requisitions of the statute. — Bentley v. McKenzie, 30 Ala. 139; Kirksey v. Fike, 27 Ala. 383. It would be difficult to reconcile the doctrine of Hartley v. Bloodgood with the later decisions under the same statute. — MeGown v. Sprague, 23 Ala. 524; Flake v. Bay, 22 ib. 132; Bank of St. Marys v. St. John, Powers Co., 25 Ala. 566. To carry the principle of that case out, as contended for by the counsel for the appellee, would not only be inconsistent with more recent decisions, and with other decisions upon the statute of 1846, but it would abrogate so much of the law as prescribes the bond and affidavit.

The decree of the chancellor must be reversed, and a decree must be here rendered, dismissing the bill, without prejudice, at the costs of the appellee.