This is an appeal from a decree entered in an attempted intervention petition filed by the wife of Earl Wysong. The intervention was sought in a suit begun by attachment against Wysong. The property attached was a one-half interest in real estate which had been deeded to Mr. and Mrs. Wysong jointly.
The record is comparatively short, but presents a series of anomalous legal situations which have been most difficult of solution.
A history of the proceedings leading up to the intervention suit is essential to a consideration of this appeal. The record discloses the following:
Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, it has been settled that
It is to be noted that the court's order to the sheriff to withhold sale of the attached property was entered some eleven days after the default judgment was taken against Wysong. Circuit courts have the discretionary power to set aside default and nil dicit judgments during the term in which such judgments are rendered, which power is revisable only by mandamus for abuse of discretion. Bekurs v. Bumper Service, 271 Ala. 110, 122 So.2d 727. No such procedure was followed in this instance.
An attachment is purely ancillary to the main suit and if the court enters a judgment for the amount of the plaintiff's claim, and makes no order as to the attached property, the attachment is considered thereby to be released. Kaylor v. Pocahontas Coal Co., 118 Va. 369, 87 S.E. 551.
Further, where attachment is essential to jurisdiction in the main suit, a dissolution of the attachment will terminate the main suit. 7 C.J.S. Attachment § 471 a.
An attachment lien is inchoate until perfected by sale of the attached property.
The action of the court on 20 March 1962, in ordering the sale of the property seized under the attachment to be withheld until further orders of the court, in effect suspended the attachment. The defendant in the attachment suit being a non-resident, the court by its order withholding the sale of the attached property thereby destroyed its jurisdiction in the main suit filed by Jennings and Pearson, and that suit was thereby terminated.
This being so, there was no suit pending at the time that Mrs. Wysong attempted her intervention. The lower court erred in permitting such intervention, in entertaining the intervention suit, and in entering a judgment therein. For this reason, the decree entered in the intervention suit, which is the basis of this appeal, was a nullity. There can be no appeal from a void decree. This attempted appeal must therefore be dismissed.
Numerous other points are argued. We pretermit discussion of these points in the interest of brevity except in one instance in the event of further proceedings.
In its decree pursuant to the intervention suit, the court found that as a result of Mrs. Wysong having particularly described the real estate in question in her petition for divorce, she thereby obtained a lien superior to that of the attaching creditors who instituted proceedings subsequent to the petition for divorce. In support of this view the court cited Germania National Bank v. Duncan, 62 Okl. 144, 161 P. 1077. The reading of this case shows that in Oklahoma, at the time of the above decision, an action lien was provided for by statute upon the institution of legal proceedings when property was described with particularity in the pleadings.
This statutory action lien created by the Oklahoma statute reflects the common law rule. However, our lis pendens statutes, particularly Sections 66 and 69, Title 47, Code of Alabama 1940, creates an entirely different rule in this state and the common law doctrine of lis pendens applies
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.