Battle v. Morris

• Decision Date: 10 January 1957
• Docket Number: 5 Div. 639
• Citation: 265 Ala. 581,93 So.2d 428
• Parties: Enoch BATTLE v. Radford MORRIS.
• Court: Alabama Supreme Court

Page 428

93 So.2d 428

265 Ala. 581

Enoch BATTLE v. Radford MORRIS.

5 Div. 639.

Supreme Court of Alabama.

Jan. 10, 1957.

Rehearing Denied March 7, 1957.

Rushton, Stakely & Johnston, Montgomery, and Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.

Walker & Walker, Opelika, and W. C. Hare, Tuskegee, for appellee.

STAKELY, Justice.

Radford Morris (appellee) filed a bill in the Circuit Court of Macon County, in Equity, to set aside a consent judgment for $3,000, which had been rendered in his favor against Enoch Battle (appellant) on the law side of the Circuit Court of Macon County.

The bill alleges in substance that Radford Morris suffered injury and damages as a proximate consequence of the negligence of Enoch Battle and one Lewis Thomas, who was not made a party to the cause; that Radford Morris filed suit against Enoch Battle in the Circuit Court of Macon County on December 21, 1953; that through his attorney he negotiated a settlement with Enoch Battle for $3,000 and executed a release therefor and that later on April 2, 1954, a consent judgment was rendered in his favor for $3,000 by the Circuit Court of Macon County against Enoch Battle, which was marked satisfied on the same day by his attorney.

The bill further alleges that on March 5, 1954, he filed another suit through another attorney against Lewis Thomas in which he claimed damages for the same injury which had been the basis of his claim and suit against Enoch Battle and that Lewis Thomas planned to plead the consent judgment to which we have referred as defense to the suit for damages which he had filed against Lewis Thomas.

Radford Morris prayed that the court review and vacate the consent judgment rendered in his favor against Enoch Battle and that a judgment be ordered in conformity with the agreement of the parties in that suit and fully protecting Radford Morris in his right to proceed with his claim and suit against Lewis Thomas, so that the consent judgment would not be a bar or a defense thereto.

In the case at bar the Circuit Court of Macon County, in Equity, entered a decree on September 23, 1955, setting aside and vacating the personal judgment to which we have referred. The present appeal is from this decree.

On July 26, 1955, Radford Morris (appellee) filed an affidavit in the instant case in which he alleged the Enoch Battle was a nonresident of the State of Alabama and that his present place of residence and post office address were unknown and could not be ascertained after diligent inquiry and that service on Enoch Battle by publication was necessary. The result was that on September 20, 1955 a decree pro confesso was entered. The testimony of Radford Morris and his attorney were taken and thereupon the final decree of September 23, 1955, to which we have referred, was rendered by the court.

A brief statement of the salient allegations of the bill is necessary for an understanding of the case. It is alleged in the bill and claimed by Radford Morris that when the settlement of $3,000 with Enoch Battle was negotiated he and his attorney understood that this was only a partial settlement for the damages sustained by him and that all rights to claim damages against Lewis Thomas were expressly retained. Pursuant to this agreement Radford Morris executed the release to which we have referred, which expressly provided that the release from Enoch Battle was for all claims and damages 'that I may have against Enoch Battle.' The release further contained the following provision: 'This release applies only to Enoch Battle and to no one else.' It was further shown that the facts and circumstances relating to the two pending suits were explained to the trial judge who entered the following bench note: '4-2-54. Judgment by consent for plaintiff and against the defendant, Enoch Battle, only for $3,000.00.'

The allegations of the bill further showed that the clerk of the court in entering the judgment mistakenly entered in the minutes of the court a judgment against Enoch Battle for $3,000 without restriction or reservation and that such judgment was entered without the consent of Radford Morris and without reference to the agreement of settlement between the parties.

The appellee makes a number of contentions in support of the present decree of the circuit court, in equity. Reference is made to Equity Rule 63, Code 1940, Tit. 7, Appendix. It is sufficient to say that Equity Rule 63 provides for correction of clerical mistakes in equity decrees which obviously does not apply to the present situation because if there was any mistake it was a mistake in a judgment of law and not a mistake in an equity decree.

Reference is also made to § 567, Title 7, Code of 1940, where the circuit court as a law court is authorized to 'amend any clerical error * * * or other mistake of the clerk or register.' The origin, object and the purpose of this statute is referred to in Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304. Again, it is sufficient to say that § 567 authorizes a law court to amend any clerical error or mistake of the clerk or register in the entry of the judgment. We are not interested, however, in the case at bar in the power to amend the original consent judgment. The court has undertaken to set aside and vacate this consent decree and § 567 is clearly not applicable to such a situation.

As stated the service of the bill in the instant case was had on Enoch Battle only by publication, Accordingly, it is earnestly contended that since an action to set aside a personal judgment in a court of equity is an in personam proceeding, the court has no jurisdiction to enter its decree vacating and annulling the judgment in the absence of personal service on Enoch Battle.

We do not agree that the rule here referred to has application in the present instance. The proceeding here instituted in the equity court is in the nature of a proceeding in rem against the consent judgment, which is sought to be annulled, and while Enoch Battle against whom the consent judgment is rendered, is not within the reach of personal service of process, the consent judgment was rendered by an Alabama Court, the Circuit Court of Macon County. The record of the judgment is the res before the court in the present suit and since the court has jurisdiction of the res, notice of the suit may be given the nonresident defendant by publication, personal service not being required.--Britton v. Bryson, 216 Cal. 362, 14 P.2d 502; Everett v. Everett, 22 App.Div. 473, 47 N.Y.S. 994; Reybine v. Kruse, 128 Fla. 278, 174 So. 720; Parker v. Board of Com'rs of Okmulgee 187 Okl. 308, 102 P.2d 880; 72 C.J.S., Process, § 57, p. 1075.

Accordingly, we may summarize the situation to the present point as showing that the bill filed by Radford Morris to annul and vacate the judgment against Enoch Battle is a proper procedure, but of course the bill in its allegations must contain equity. It will be recalled that the allegations of the bill were taken as confessed in a decree pro confesso and a final decree entered on the basis of the decree pro confesso. To sustain a decree pro confesso, no essential fact may be supplied by intendment and where in a bill which is taken as confessed and to which no defense is made in the equity court, the averments of the bill must be sufficient on which to authorize the relief prayed for, and if the bill is not so sufficient, the decree will be reversed on appeal. National Building & Loan Ass'n v. Ballard, 126 Ala. 155, 27 So. 971.

We therefore, have come to the point where we must analyze the allegations of the bill to see if it will sustain the decree of the court setting aside the consent decree.

A court of equity has undoubted jurisdiction to set aside and enjoin the enforcement of a judgment at law procured through fraud, accident or mistake when the claiming party has a meritorious defense to the action and was without negligence himself in permitting the rendition of the judgment. Hanover Fire Ins. Co. v. Street, 228 Ala. 677, 154 So. 816. It is difficult for us at the outset to see where any mistake was made in the writing of the judgment by the clerk of the court. It is true that it was explained to the trial judge that the rights of the plaintiff to proceed further against Lewis Thomas were to be retained and an effort is made to show that the trial judge intended to carry out such an understanding because of the bench note to which we have referred. All we can say is that an unqualified judgment was entered on the minutes of the court without any statement that the judgment represented a pro tanto settlement and that rights against Lewis Thomas were expressly retained. The statement that the judgment was entered 'only' against Enoch Battle, adds nothing to the situation, since Enoch Battle was the only defendant in the case and the judgment could be only against Enoch Battle.

In fact in the absence of a statute providing otherwise, damages against jointtortfeasors are not apportioned. Joint tortfeasors are jointly and severally liable for the entire damage sustained. 49 C.J.S., Judgments, § 36, p. 88; 86 C.J.S., Torts, § 34, p. 949; Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276; City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25. In other words we do not see how the court could have entered a judgment for a proportionate part of the damages against Enoch Battle with a retention of rights against Lewis Thomas. The recovery of a judgment against one and its satisfaction is a satisfaction of the entire claim, and the judgment cannot be so expressed as to have a different meaning. McCoy v. Louisville & N. R. Co., 146 Ala. 333, 40 So. 106; Steenhuis v. Holland, 217 Ala. 105, 115 So. 2. What we have said must not be confused with the right of Radford Morris to give a pro tanto release to Enoch Battle with a retention of the right to sue and hold ...