Murray v. Cone , 8 Port. 250 ( 1838 )

COLLIER, C. J.

— It is insisted that the judgment, in this case, should be reversed, for these reasons:

1. The judgment is by default, and for a larger sum than is demanded by the declaration.

2. No notice was given to the plaintiff in error of the issuance of the attachment, or pendency of the suit.

3. The affidavit on which the attachment was sued out, was not made either by the defendants, or their agent or attorney.

1. The declaration discloses as the cause of action, a judgment recovered by the defendants in the Superior court of the county of Hall, in the State of Georgia, for the sum of two thousand one hundred and sixty-three dollars, and eighty-five cents. Though the action is (as it should be) debt, yet a judgment final is rendered by default, for the sum of twenty-five hundred and nine 61-100 dollars, in damages.

We imagine that the judgment was swelled to an amount beyond the debt claimed, by the addition of interest thereon. That the defendants are entitled to damages beyond the recovery in Georgia, to the extent of the interest allowed there, is indisputable; but to show what that is, they should have submitted the case to a jury, in the absence of a plea, on an inquiry of damages; when they might have produced the statute, or if there was none, proved the usage of Georgia, which ascertains the value of money there. The neglect to pursue this course makes the judgment erroneous—(Peacock vs. Banks, Ala. Rep. 387; Evans vs. Irvin & Dunlap, 1 Porter’s R. 390; Evans vs. Clark, ibid. 388; Richardson vs. Williams, 2 Porter’s R. 239.)

2. In respect to the second objection, it may be remarked, that the attachment law was new-modelled in eighteen hundred and thirty-three. The acts previously existing were to some extent omitted, and new provisions added, and even the old law, so far as retained, was greatly varied in its terms. It is not now necessary to give notice, either through the medium of the post office, or by publi; advertisement, to a non-resident defendant. The plaintiff in attachment may, if he know where the defendant resides, transmit him a notice by mail, or when his residence is unknown, he may apply to the judge or justice issuing the attachment, who w.ll prescribe the manner of tiie advertisement. If, however, all this is delayed, the only consequence is, that the plaintiff can take no judgment within six months—(Aik. Dig. s. 15, p. 41.) Had the law have remained unchanged, we should have followed the decision of this court in Harris & Farrow vs. Clap, (Ala. Rep. 328.) The record shows that the judgment was not rendered until more than six months after the issuance of the attachment. The objection, then, is not well taken.

3. Upon looking into I ho record, we think this reason is not suslaiued. The individual making the affidavit describes himself as the agent of the persons for whose use the suit was brought. Though net nominally so, they are for most purposes the plaintiffs — they complain; they are responsible for costs; and to them belongs whatever may be recovered. The affidavit, then, in this respect, meets the requisition of the statute. But, for the first cause considered, the judgment must be reversed, and the ease remanded.