In my opinion this petition for certiorari to the Court of Appeals should be granted, and the order of affirmance there entered should be reversed. The petitioner, Tucker, was and is a nonresident. Quick's action against him was commenced by attachment. The levy was properly adjudged void by the trial court. Through Tucker's execution of a character of "forthcoming bond" (the presently material features of which will be quoted), the property taken under the void levy was delivered to Tucker. The only condition of Tucker's bond was as follows:
"Now, if the said R. B. Tucker shall deliver the property so levied upon to the proper officer by 12 o'clock noon of the next term circuit court, at the courthouse door of said county, then this obligation to be void; otherwise, to remain in full force and effect."
Manifestly this was not a statutory replevy bond. Code, § 2955. No other effective measure was taken in the trial court to so bring the nonresident into court as to authorize the rendition of the personal judgment that was rendered against him, by the Court of Appeals affirmed. The majority of the court has held, upon authority of Peebles v. Weir, 60 Ala. 413, and Chastain v. Armstrong, 85 Ala. 215, 3 So. 788, that the execution by Tucker of this bond brought Tucker under the jurisdiction of the trial court in such sort as to justify the personal judgment against him. The bond given by Tucker in the present case is materially different from the replevy bond on which the ruling in the Peebles and Chastain Cases, supra, was based. In the Peebles Case the bond contained the assurance that the defendant would "defend said action to effect," or if he failed he would return the property to the proper officer. In the Chastain Case it appears from the original record, which has been consulted, that the defendant's bond provided, "if the defendant shall [should] fail in the action," he would return the property to the proper officer. In both of these cases the bond was a replevy bond under the statutes. The bond given by Tucker contained no such assurance as that quoted from the bonds in the Peebles and Chastain Cases. These considerations should differentiate those cases from the case under review.
An additional consideration, discriminating the cases of Peebles and Chastain, is that both were decided at a time when this court was adhering to the view that a nonresident, whose property was the subject of levy by the court issuing the writ, subjected himself to the jurisdiction of that court to render a personal judgment against him. That rule of the local courts was, in effect, annulled in consequence of the pronouncement of the Supreme Court in Pennoyer v. Neff, 95 U.S. 714,24 L. Ed. 565, and Exchange National Bank v. Clement, 109 Ala. 270,280-281, 19 So. 814. To now apply the doctrine of the Peebles and Chastain Cases is to deny appropriate effect to the change of legal status that was recognized by this court in the Clement Case, supra. There may possibly be yet some ground upon which to found a conclusion that a nonresident has subjected himself to the jurisdiction of the court when he executes a bond to regain the property, in which he gives assurance that he will defend the action, as was the condition in the Peebles and Chastain Cases. The more recent case of Oliver v. Kinney,173 Ala. 593, 56 So. 203, is not an authority in support of the majority view. The bond there contained the substantial terms which we have quoted from the bonds considered in the Peebles and Chastain Cases. The act that awakens the jurisdiction of the court, and in connection with a statutory replevy bond (not a common-law bond) may impose the consequences of an attained jurisdiction upon the replevying defendant, is the levy, and it would seem quite plain that, where the levy was, as in this instance, void, no jurisdiction to render the personal judgment against the nonresident defendant was obtained.
In the writer's opinion, the sound doctrine of the case of T. O. Mill Co. v. Planters', etc., Co., 197 Ala. 429, 73 So. 18, is applicable, and should rule this application for certiorari.
SAYRE, J., dissenting, is of the opinion that, where the levy is void, the execution of the replevy bond does not of itself give jurisdiction of the person. *Page 431