Opinion
8 Div. 71.
January 31, 1929.
Bradshaw Barnett, of Florence, for appellant.
The court of a justice of the peace is not a court of record. Willett v. Weaver, 205 Ala. 268, 87 So. 601; Ellis v. White, 25 Ala. 540; Horton v. Elliott, 90 Ala. 480, 8 So. 130; Pullman, etc., Co. v. Harrison, 122 Ala. 149, 25 So. 697, 82 Am. St. Rep. 68; Wilmerding v. Corbin Banking Co., 126 Ala. 268, 28 So. 640. The record of the justice of the peace must show jurisdiction of the subject-matter and person. 35 C. J. 549, 584; Cleveland v. Little Cahaba Coal Co., 205 Ala. 369, 87 So. 567; Visible Measure Co. v. McCarty Drug Co., 206 Ala. 588, 91 So. 383; Cottingham v. Smith, 152 Ala. 664, 44 So. 864; Hitt Lbr. Co. v. Turner, 187 Ala. 56, 65 So. 807. A judgment of the justice of the peace in an attachment suit, in which the record upon its face does not show the notice as required by statute, is void. Wilmerding v. Corbin Banking Co., supra; Visible Measure Co. v. McCarty Drug Co., supra. Seizure without writ is void. 6 C. J. 175. Actual levy of attachment is necessary to give the court jurisdiction. Levy of the writ must be shown. 6. C. J. 213; Flournoy v. Lyon, 70 Ala. 308; Carter v. Smith, 142 Ala. 414, 38 So. 184, 110 Am. St. Rep. 36. Existence of jurisdictional facts is not inferred from the mere exercise of jurisdiction by court of special and limited jurisdiction. Judgments of such courts may be collaterally attacked. Martin v. Martin, 173 Ala. 106, 55 So. 632; Chamblee v. Cole, 128 Ala. 649, 30 So. 630. A judgment void for want of jurisdiction may be collaterally impeached by any person interested whenever it is brought into question. Robertson v. State, 20 Ala. App. 514, 104 So. 561; Wise v. Miller, 215 Ala. 660, 111 So. 913; L. N. v. Tally, 203 Ala. 370, 83 So. 114.
Jas. C. Roberts, of Florence, for appellee.
Brief of counsel did not reach the Reporter.
We think that the Court of Appeals has misapplied the case of L. N. R. Co. v. Tally, 203 Ala. 370, 83 So. 114, to judgments of a justice of the peace court, which is not one of record. Willett v. Weaver, 205 Ala. 268, 87 So. 601; Burns v. Campbell, 71 Ala. 271. The Tally Case, supra, dealt with a judgment in a court of record and of general jurisdiction. Moreover, the judgment showed the appearance of the parties.
We also think that the statement, in the opinion of the Court of Appeals, that the law is well settled that a judgment rendered by a court having jurisdiction of the person and of the subject-matter is not open to collateral attack, is inapt, as the contention and insistence of petitioner was that the record did not show jurisdiction of the person of the defendant, either by summons or notice of the attachment; the one being essential to a judgment in personam, and the other to a judgment in rem. The judgment involved did not recite or show either of these facts; nor were they shown by the record of the justice court.
Under these circumstances, the court had no jurisdiction of the defendant's person, and the personal judgment was void. Cottingham v. Smith, 152 Ala. 664, 44 So. 864. Likewise, it was void as a judgment in rem, in the absence of notice of the levy of the attachment. Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 28 So. 640; Visible Measure Gasoline Dispenser Co. v. McCarty Drug Co., 206 Ala. 588, 91 So. 383.
The Court of Appeals erred in holding that the trial court did not err in not sustaining the petitioner's objection to what purported to be the judgment of the justice of the peace court.
Writ of certiorari awarded, and reversed and remanded to the Court of Appeals for further consideration in conformity with this opinion.
All Justices concur, except BROWN, J., not sitting.