Ex parte Kelly
Decision Date | 23 January 1930 |
Docket Number | 6 Div. 490. |
Citation | 128 So. 443,221 Ala. 339 |
Parties | EX PARTE KELLY. v. CARMICHAEL ET AL. KELLY |
Court | Alabama Supreme Court |
Rehearing Dismissed June 4, 1930.
Certiorari to Circuit Court, Jefferson County.
Petition of Leona B. Kelly for certiorari to review the action on decree of the circuit court of Jefferson county, in equity in the cause of Leona B. Kelly against W. M. Carmichael and others.
W. H Smith, of Birmingham, for petitioner.
Howze & Brown, of Birmingham, opposed.
This is the second review touching the same subject-matter and the same parties. Kelly v. Carmichael, 217 Ala. 534, 117 So. 67.
The petition is for writ of common-law certiorari to review the action of the trial court in rendering decree in equity. The substance of the petition is that the cause was submitted for decree, by the respondent in the original cause, over the objection of complainant, after interrogatories were filed and served on respondent, and before answer; and petitioner also seeks "protection against the erroneous charge against her of attorney's fees in a lump sum for all services rendered in this case by respondent's solicitor, and also all court costs." Thus is stated, by petitioner's counsel, her effort at correction and review of the action of the lower court.
It is true that a judgment rendered without jurisdiction of the subject-matter or of the parties is coram non judice. L. & N. R. Co. v. Tally, 203 Ala. 370, 83 So. 114. And if want of jurisdiction appears on the face of the record, the judgment will be treated as a nullity on attack. 15 R. C. L. § 358, p. 880.
The rule is well stated in Blount County Bank v. Barnes, 218 Ala. 230, 118 So. 460; Campbell Motor Co. v. Stanfield, 218 Ala. 663, 120 So. 475; Ex parte Tanner, 219 Ala. 7, 121 So. 423.
In Jackson Realty Co. v. Yeatman, 219 Ala. 3, 121 So. 415, it is declared upon the authority of McDonald v. Mobile Life Ins. Co., 56 Ala. 468, and Westbrook v. Hayes, 137 Ala. 572, 34 So. 622, that the bill must set forth the material averments necessary to support recovery when rested on the allegations in a pleading admitted or proved. Manchuria S. S. Co. v. Donald & Co., 200 Ala. 638, 77 So. 12.
It is further established, that a decree is void if rendered without a submission of the cause for final decree, before answer and without decree pro confesso, and was therefore not at issue and not ready for submission for a final decree. Durr v. Hanover National Bank, 148 Ala. 363, 42 So. 599; Thomas v. Barnes, 219 Ala. 652, 655, 123 So. 18; 5 Ency. Pl. & Pr. 955, 957. This condition of a record, as a rule, leads to a reversal. Smith v. Smith, 212 Ala. 132, 101 So. 903; Sloss-Sheffield S. & I. Co. v. Yancey, 201 Ala. 200, 77 So. 726; Thomas v. Barnes, supra.
Therefore, is the judgment rendered void if submission of the cause is prematurely taken by the court over the objection of a party when the adverse party has not answered interrogatories duly propounded? The provisions of section 6570, Code of 1928, are cumulative to the right of discovery in courts of equity, though answer under oath has been waived in the bill. Rosenau v. Powell, 173 Ala. 123, 55 So. 789.
The statute gave complainant the right to testimony of respondents, though interrogatories were not included in her original bill, and although she had waived answer thereto under oath. The interrogatories were propounded after answer was filed by respondents. The amendment to her bill, after decision reported in 217 Ala. 534, 117 So. 67, is of date of June 18, 1928; demurrer thereto, and decree thereon are of date of April 2, 1929, and answer is of date of April 4, 1929. The petition avers that on April 12, 1929, the respondents moved the court to set the cause for final hearing, and no decision on the "same appears of record," but a copy of the notice thereof served on complainant's solicitor is exhibited. Thereafter complainant's interrogatories were filed on April 24, 1929; there was a decree pro confesso against R. G. Allen, one of the parties, on April 25th. And on the same day, respondents moved for an order of reference for the purpose of ascertaining the amount necessary to be paid to redeem the property involved in this suit, from the foreclosure of the mortgage, and on that day complainant moved to strike from paragraph 17 and subdivision 8 thereof, the matter stated on the ground "that said part of said answer does not pertain to any issue involved in the bill of complaint as last amended."
The immediate proceedings to the decree are thus stated in the petition:
It should be further stated that the former proceedings in this court show that complainant's original bill was filed on March 30, 1927.
Respective counsel agree that appeal will not be from a void decree or judgment. Gartman v. Lightner, 160 Ala. 202, 49 So. 412; Hayes v. Hayes, 192 Ala. 280, 68 So. 351. If appeal would lie from such final decree in which the court had jurisdiction of the parties and the subject-matter, that course should have been resorted to by the party aggrieved, and not by way of certiorari in a case where certiorari is the remedy.
At the time of the reference the attorney for complainant, petitioner here, was present, and had the opportunity to examine the respondent and his witness, and also the right to introduce such evidence as she desired. All the parties were before the court and had the opportunity to elicit the facts called for in interrogatories so lately filed in the cause. This she did not do, or seek to do. With the evidence before the court, the register found and reported, as indicated in the report, in favor of the respective parties, as indicated. It was to the effect that respondent owned the notes and mortgage when the bill was filed, and "he still owns the same;" that the amount justly due respondent, principal, interest and taxes, is the sum indicated in that report, and that an additional sum as "reasonable fee" for the services of the solicitor for said respondent was that indicated in the decree; and stated the aggregate or total sum.
The exceptions to the register's report were to the allowance of attorney's fee that is alleged to have been "an irregular charge against complainant," for reasons stated in the exception; that the reference was premature in that "no submission of the cause was made on that date;" that Respondent Carmichael filed his answer to the bill on April 4,...
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... ... section 6570, Code of 1928, that was cumulative of the ... discovery sought by the bill. Ex parte Kelly (Kelly v ... Carmichael), 221 Ala. 339, 128 So. 443; Rosenau v ... Powell, 173 Ala. 123, 55 So. 789; Goodall-Brown & ... Co. et al ... ...
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...are in accord that the common law writ of certiorari lies only when no other remedy is provided for. See, e.g., Kelly v. Carmichael, 221 Ala. 339, 346, 128 So. 443 (1930) (the writ lies "in cases obviously entitled to redress and unprovided for by the ordinary forms of proceeding"); Bremer ......
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