Johnson v. Straus Saddlery Co.

• Decision Date: 14 November 1911
• Citation: 56 So. 755,2 Ala.App. 300
• Parties: JOHNSON v. STRAUS SADDLERY CO.
• Court: Alabama Court of Appeals

56 So. 755

2 Ala.App. 300

JOHNSON v. STRAUS SADDLERY CO.

Court of Appeals of Alabama

November 14, 1911

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Straus Saddlery Company against C. V. Johnson and others. There was a default judgment for plaintiff, and defendant C. V. Johnson filed a writ of error coram vobis and from the refusal to grant the petition he appeals. Affirmed.

Hogan & Steele, for appellant.

McMillan & Grayson, for appellee.

PELHAM, J.

Judgment by default was rendered in the court below against C. L Johnson & Son, a partnership, and C. V. Johnson, the appellant, individually, at the suit of appellee, on the 18th day of January, 1910; and more than 30 days thereafter, when under the act creating the law and equity court of Mobile (Acts 1907, p. 572, § 23), the judgment must be treated as if rendered at a prior term of the court, the appellant, on, to wit, July 30, 1910, filed and presented a sworn statement to the court, alleging that he was a minor at the time the said judgment was rendered against him, and that no guardian ad litem had been appointed by the court to appear and defend in his interest on the trial of the case, and praying that a writ of error coram vobis be granted, and the judgment as to him be set aside or recalled and held for naught. Appellant's petition was refused, and he appeals assigning as error the order of the court in refusing to grant the petition.

The right of courts in this state, of like jurisdiction to the law and equity court of Mobile, to issue the common-law writ of error coram vobis has long been recognized (Holford v. Alexander, 12 Ala. 280, 46 Am. Dec. 253; Stewart v. Nuchols, 15 Ala. 231, 50 Am. Dec. 127), but whether or not the facts presented by the petition in this case make a proper showing for an issuance of the writ is a nice question. Ingersoll v. Wilson, 3 Johns. (N. Y.) 437. That question, however, is not before us on this appeal, and we are precluded from considering it, as the petition in this case is not shown by the record to have been demurred to, and the bill of exceptions fails to show any proof offered to sustain its allegations. The petition, although sworn to, is no more than a pleading in the case, and not proof of the matters set up in it, as is contended by appellant.

The record proper and bill of exceptions show only that the petition was presented to the court and...