Ex Parte National Lumber Mfg. Co. , 146 Ala. 600 ( 1906 )

DOWDELL, J.

A final judgment in garnishment proceedings is merely a confirmation of the judgment nisi, which is-a conditional judgment. A valid judgment nisi is therefore necessary to support a valid final judgment. If the judgment nisi is for any reason void, there can be no confirmation of it, and hence no valid final judgment can be predicated on it. — Goode v. Holcombe, 37 Ala. 94; Drane v. King, 21 Ala. 558; Spence v. Simmons, 16 Ala. 828; Lowry v. Clements, 9 Ala. 422; Dickerson v. Walker, 1 Ala. 48.

To authorize a judgment by default against a corporation, the record must show that proof was made that the person upon whom process was served was, at the time of the service, such an agent or officer as by law was authorized to receive service for and on behalf of the corporation. This has been the rule of practice in this state since the case of Huntsville v. Walker, Minor 391. This rule has been followed in numerous cases decided by this court, and has become too firmly established to be now overturned. — St. John v. Tombeckbee Bank, 3 Stew. 146; Wetumka & Coosa R. R. Co. v. Cole, 6 Ala. 656; Oxford Iron Co. v. Spradley, 42 Ala. 24; Southern Express Co. v. Carroll, 42 Ala. 437; M. & E. R. R. Co. v. Hartwell, 43 Ala. 508; Independent Pub. Co. v. Amer. Press. Association, 102 Ala. 475, 15 South. 947; Hoffman v. Ala. Distillery & Feeding Co., 124 Ala. 542, 27 South. 485.

The record fails to show that at the time of the rendition of the judgment nisi that the necessary proof of service on the defendant in order to support such judgment was made. The judgment nisi, therefore, was a nullity, and the final judgment based on it was likewise void. That the common law writ of certiorari in such a case is the proper remedy, see Beach v. Lavender Bros., 138 Ala. 406, 35 South. 352, and other authorities cited above.

Tbe motion to quash the writ must be overruled, and a judgment will be here rendered, quashing the judgment in the lower court brought under review by the writ.

Weakley, C. J., and Haralson and Denson, JJ., concur.