The appellee, Quick, sued out a writ of attachment against the appellant petitioner for $200, returnable to the circuit court. The writ was levied on petitioner's property by a specially deputized constable, and petitioner, who was and is a nonresident of Alabama, executed a replevy bond, whereupon the property was delivered to him.
Petitioner then appeared specially in the circuit court, and presented a motion to discharge the levy and also to dissolve the attachment, on the ground that the levy was void as having been made by a special constable. The court granted the motion to discharge the levy, but denied the motion to dissolve the attachment. Petitioner thereupon, appearing specially and for that purpose only, interposed a plea to the jurisdiction, setting up the foregoing facts, and alleging that no process had been served on him, nor anything done to confer jurisdiction over him.
A demurrer was sustained to this plea, and on appeal the ruling of the trial court was affirmed by the Court of Appeals on two grounds: (1) That by the execution of the replevy bond, petitioner voluntarily gave to the court jurisdiction over his person; and (2) that, by pleading over to the merits of the cause, after the elimination of his plea by judgment on demurrer, petitioner waived his plea to the jurisdiction, and lost his right to review the ruling of the trial court on the demurrer.
The first ground relied upon for affirmance is undoubtedly sound. The execution of the replevy bond was the equivalent of a personal service of process on the defendant in attachment, and gave to the trial court the same jurisdiction over his person. Peebles v. Weir, 60 Ala. 413; Chastain v. Armstrong,85 Ala. 215, 3 So. 788; Oliver v. Kinney, 173 Ala. 593,56 So. 203. It made him "a party to the suit" (Peebles v. Weir, supra), and he was "bound to appear and defend * * * as in case of personal service of process" (Oliver v. Kinney, supra). Therefore, so far as jurisdiction was concerned, the question was foreclosed and predetermined by matter appearing on the record, and admitted by the plea.
Had the trial court dissolved the writ of attachment — that being the medium through which jurisdiction was acquired — the effect of the execution of the replevy bond would have been nullified, and a plea to the jurisdiction would have been available, as held in Terminal Oil Mill Co. v. Planters', etc., Co., 197 Ala. 429, 73 So. 18. If the language of the opinion in that case went further than that, it is in conflict with the several cases above cited, and must be to that extent disapproved. The decision, however, upon the distinction noted, seems to be in accord with the views expressed in Oliver v. Kinney, supra, 173 Ala. 603, 56 So. 203.
Though not good as a statutory bond, the replevy bond here exhibited was clearly valid as a common-law obligation (Adler v. Potter, 57 Ala. 571), and was sufficient to give the court jurisdiction over the defendant's person; that effect being in no wise dependent upon the technical form of the bond. The case of Jones v. Baxter, 146 Ala. 620, 41 So. 781, 119 Am. St. Rep. 54, relied upon by petitioner, holds nothing to the contrary.
It is clear, we think, that the second ground stated in the opinion of the Court of Appeals, if intended as an independent basis for the conclusion declared, is opposed to the decisions of this court, as well as contradictory of section 5370 of the Code. It is to be noted, of course, that while the execution of a replevy bond, or the entry of a general and unconditional appearance, by a defendant in attachment who was personally served, is conclusive against his right to thereafter deny the jurisdiction (Oliver v. Kinney, supra: Merchants', etc., Bank v. Troy Grocery Co., 150 Ala. 128, 43 So. 208; Rosenberg v. Claflin Co., 95 Ala. 249, 10 So. 521; Lampley v. Beavers,25 Ala. 534), it does not prevent his resort to any other plea in abatement (Oliver v. Kinney, supra). And when he is duly within the jurisdiction of the court, by whatever means or process that result is accomplished, if he then pleads to the merits of the cause, without first interposing any available plea in abatement, he waives the matter in abatement. Cooper v. Lakewood Co., 199 Ala. 633, 75 So. 307.
But where the matter in abatement *Page 430 has been seasonably and properly interposed by plea, and the plea has been held bad in law or in fact, the defendant may then plead over to the merits of the case, without waiving his right to assign for error on appeal the adverse ruling or judgment on his plea in abatement. Code, § 5370; Steele v. Booker, 205 Ala. 210, 87 So. 203.
The judgment of the trial court should be affirmed on the ground first stated, but affirmance cannot be predicated on the second ground relied upon.
The writ of certiorari will be denied.
All the Justices concur as to the second proposition.
ANDERSON, C. J., and GARDNER, THOMAS, and MILLER, JJ., concur in the opinion as to the first proposition, and in the denial of the writ.
McCLELLAN and SAYRE, JJ., dissent.