V. & A. Meyer & Co. v. Keith

HEAD, J.

The recitals of the judgment-entry do not sufficiently show that the notice required by the statute of the issuance and levy of the attachment was given. A recital, as in the present case, that notice was given as required by law, will not sustain a judgment by default.—Code, § 2936; Dow v. Whitman, 36 Ala. 604: Brierfidd v. Austin, 39 Ala. 227; Diston & Sons v. Hood, 83 Ala. 331.

The complaint, so far as the transcript shows, was not marked filed by tbe clerk. Tbat should be attended to. We do not decide tbat a complaint found in tbe transcript and certified to by tbe clerk, in bis general certificate, as a part of tbe record of tbe proceedings, will not be regarded by us as a part of tbe record, because not so marked. We simply call attention to tbe irregularity, wbicb appellants insist upon now as a ground of reversal, tbat it may be cured.

It is insisted by appellants tbat no personal judgment by default can be rendered against a non-resident in attachment on statutory notice; but that tbe judgment should be one of condemnation only. Tbe question has been settled contrary to this contention by tbe decisions of this court, from wbicb we are not inclined to depart.

Reversed and remanded.