
    William L. Brown vs. Brown & McCullough.
    1. Attachment. To enforce mechanics lien. Notice to defendant indis-sensible. Act 1846, ch. 118, § 3. The attachment authorized by the act of 1846, eh. 118, §3, to secure and enforce the mechanics lien, is auxiliary and collateral to the original process, which compels the appearance of the defendant. He must have a day in court to make his defence, for the matter in contest is the justice of the plaintiffs’ demand, that being settled, the lien is a matter of course. Thus, where a mechanic sued out an attachment under the act of 1846, ch. 118, § 3, from the circuit court, which was levied upon defendant’s property to enforce the plaintiffs’ lien thereon, and returned to the court, a declaration in debt filed therein, no process served or notice given to defendant, and no appearance made by him in said suit — and judgment by default was rendered against defendant for the amount of the plaintiffs’ demand, such judgment was arrested in the supreme court as a nullity.
    2. Practice. Under the act of 1846, ch. 118, § 3. In proceedings to enforce the mechanics lien under the act of 1846, ch. 118, § 3, the defendant must be summoned to answer the plaintiffs’ suit, whether the proceeding be at law or in equity — unless it be a case proper for an original 
      attachment as the leading process to compel the defendant to appear, in which case the usual attachment will issue: And if the plaintiff desire to secure and enforce his Hen for the satisfaction of the judgment to bo rendered in the ease, he must also cause an attachment to be levied on the property as auxiliary to the leading process in the suit, or it may be incorporated with the leading piocoss, so that it distinctly appear, and bo levied on the property.
    8. Same. Same. Power of clerics to administer the oath. In proceedings to enforce the mechanic’s lien under the act of 1846, eh. 118 § 3, any court having jurisdiction of the matter in litigation, has power also to issue the attachment, as a justice of the peace, the circuit court or chancery court conforming to its course of proceeding. Being in aid merely of the ordinary remedy by suit, the attachment must follow it, and be issued from the same court which has jurisdiction of the plaintiffs' dem.and, conforming at the same time to the usual conditions, as to the affidavit, bond, &c., on which the attachment is issued. Thus, if the suit be instituted by summons in the circuit court, the clerk, who is the proper officer to issue the process of that court, has power also to issue the attachment, in order to give efficiency to the remedy, and he may administer the necessary oath also.
    FROM DAVIDSON.
    The defendants in error performed labor and services for the plaintiff in error, in erecting a bouse in the county of Davidson, and they sued out an attachment at law, under the act of 1846, ch. 118, § 3, to enforce their mechanic’s lien : No process was served upon or notice of the proceeding given to the plaintiff in error, who was at the time a resident citizen of the county of Davidson. The attachment was duly levied upon the premises in question, and returned to the May term, 1854, of the circuit court of said county, and a declaration in debt filed the first day of the term. There being no plea filed in the case, judgment final by default was rendered on the last day of the term, to reverse which this writ of error was prosecuted.
    
      ¥m. ThoMpsoN, for the plaintiff in error:
    The plaintiff 'in error contends that the judgment is -erroneous :
    1. It does not appear that the defendant below had notice of the proceeding. It was his legal and constitutional right to have been notified that he might defend, if he thought proper. Vide, 2 Meigs Dig., 784-5, for the eases adjudicated by the courts of Tennessee.
    2. It Is not a case in which judgment final by default can go at the first term. Vide, N. & C. Dig., 406.
    3. The clerk had no authority, by law, to count the interest.
    4. The interest could only be counted legally by a jury. 1 Meigs Dig., Tit. Interest.
    5. The writ of enquiry could legally be executed ■only at the second term.
    6. The clerk had no authority to issue the attachment. Vide, Session Acts, 1852, 674. Act 1843, ch. 29.
    Andrew Ewing, for the defendants in error':
    It is assigned for error: 1st. That there was no personal service of the process bn the defendant. ¥e insist that personal service is not required by the act of the legislature, it gives the remedy by attachment as a proceeding in rem, just in the same manner as ' the remedy against boats under the act of 1833, and it is decided in 9th Humphreys, 629, that no personal service is necessary under that act in order to secure a recovery. The proceedings under both these acts of Assembly are not in analogy to the acts granting attachments against absconding or non-resident debtors. They are given to ensure the payment of a specific class of debts if the remedy is pursued in a limited period of time, and notice is not required.
    2d. The second error alleged by the plaintiff in error is abandoned.
    The 3d and 4th errors are, that in this species of action no judgment can be rendered final by default, but there must be the intervention of a jury. The act of 1794, §26, says: “That judgments in debt by default shall be final, unless where damages áre suggested on the roll.” It has always been understood that “damages suggested on the roll” referred to actions on penal. bonds, where the nominal amount sued for and recovered was the penalty, but the gist of the action was special damages arising from the breach of the conditions, and which were always less than the penalty. Damages are suggested in the writ and recoverable in every action of debt, but in all actions on notes, bills, accounts, &c., they are merely ancillary to the debt, whilst in actions on penal bonds they are the specific thing sued for. There is no limitation in the statute as to actions on bills, notes, bonds, &c., as there is in the statute giving jurisdiction to justices of the peace, nor is there any sensible reason why, when the justice of an account is admitted by default, there should not be a final judgment.
   Totten, J.,

delivered the opinion of the court.

This action in debt for $1167 86 was instituted in the circuit court of Davidson, by Brown & McCullough, against "Win. L. Brown, the defendant below. The debt is for materials furnished, and work and labor done by the defendants in error, as mechanics^ in building a #house for the plaintiff in error, on his land in the vicinity of Nashville. The suit was commenced by attachment issued by the clerk of said court, and levied on said land and premises, to enforce the me-chamos lien for the payment of said debt. No process was served on the person of the defendant: he did not appear, and judgment by default for the amount of said debt was taken against him.

The case is in this court by writ of error, issued at the suit of the defendant.

It is now argued, that the judgment by default is void, because the defendant below had no personal notice of the suit.

It is a general principle, founded in reason and justice, that if a defendant have no notice of the suit, and did not appear, the court has no jurisdiction over his person, and its judgment against him .in such case is merely void. Bridgeway vs. Bank of Tennessee, 11 Humph. R., 523. Burden vs. Fitch, 15 Johns. R., 140. Buchanan vs. Rucker, 9 East, 192. And therefore, the judgment of another State of the union, or of a foreign State, rendered in a case where the defendant was not duly notified to appear, and be subject to the jurisdiction of the court, or founded on the process of attachment, is of no force or effect in this State. Earthman vs. Jones, 2 Yerg. R., 484.

But the process of attachment, authorized by law, may be the foundation of a judgment, deemed valid in the State where it is rendered, and being a proceeding in rem, its effect is to subject the property attached to a judicial sale for the satisfaction of the plaintiff’s demand.

Considered as an original process, the attachment lies against non-residents and persons who in the cases specified, absent themselves, or remove their property from the jmisdiction of the court. Act 1794, ch. 1. 1843, ch. 29.

Thege acts, however, do not aid the present case: The defendant is a local citizen, he does not absent himself or remove his property from the jurisdiction of the court, and may be personally summoned- to mate defence, if any he have, against the plaintiff’s demand.

The present attachment, states no case provided for in our statutes, where it can be considered as an original process to cause the defendant to appear and answer the plaintiff’s suit. It states the case of a mechanic’s lien, and its appropriate function is to enforce the lien, and not the appearance of the defendant.

The lien given to mechanics, “may be enforced by attachment, either at law or in equity:” Act 1846, ch. 118. And in Barnes vs. Thompson, 2 Swan R., 314, it was field, in conformity to the statute, that the attachment was the only remedy to enforce the lien. We think it clear, that the attachment, which secures and enforces the mechanic’s lien, must be considered as auxiliary and collateral to the original process, which compels the appearance of the defendant. He must have a day in court to make his defence, for the matter in contest is the justice of the plaintiff’s demand, that being settled, tbe lien is a matter of course. Assuming this to be . a correct principle, the practice under it is simple and convenient. The defendant must be summoned to answer the plaintiff’s suit, whether the proceeding be at law or in equity; unless it be a case proper for an original attachment, considered as the leading process, to compel the defendant to appear, then of course, the usual attachment will issue. And if the plaintiff desire to secure and enforce his lien, for the satisfaction of the judgment to be rendered in the case, he must also cause an attachment to be levied on the property, as auxiliary to the leading process in the suit, or we see no objection to its being incorporated with the leading process, so that it distinctly appear and be levied on the property. ¥e think it clear, that any court having jurisdiction of the matter in litigation, has power also to issue the attachment as a justice of the peace, the circuit court or chancery court conforming to its course of proceeding. Being in aid merely of the ordinary remedy by suit, the attachment must follow it, and be- issued from the same court which has jurisdiction of the plaintiff’s demand, conforming at the same time to the usual conditions, as to the affidavit, bond, &c., on which the attachment is issued. Thus, if the suit be instituted by summons, in the circuit court, the clerk who is the proper officer to issue the process of that court, must have power also, to grant and issue the attachment, in order that there may be remedy for the right of lien given by the statute.

As to the power of the clerk to administer the oath for attachment, it must be considered under the statute, as conferred by implication. •

But if it were not, the Act of 1850, eb. 103, § 2, confers general power on tbe clerk to administer an oath £‘in any matter connected with any suit in said court.”

In the present case, as the court had acquired no jurisdiction of the defendant’s person, its judgment was void. It will therefore be arrested and annulled by the judgment of this court.

Judgment arrested.  