Bice v. Jones, 6 Div. 15

Citation45 Ala.App. 709,236 So.2d 718
Decision Date05 January 1970
Docket Number6 Div. 15
PartiesTimothy BICE v. W. R. JONES et al.
CourtAlabama Court of Civil Appeals

William M. Acker, Jr., Lynn G. Baldwin, Birmingham, for appellant.

Prentiss M. Rainey, Richard L. Taylor, Birmingham, for appellees.

WRIGHT, Judge.

This appeal is from a judgment of the Circuit Court for the Tenth Judicial Circuit, Jefferson County, Alabama.

The proceedings prior to the appeal were as follows: Plaintiff-Appellant Bice filed suit to recover for personal and property damages resulting from an automobile accident with defendant-appellee, W. R. Jones. The suit contained two counts, count one alleging simple negligence, and count two alleging willful and wanton conduct and injury. Count two was in the following form:

'Count Two--Plaintiff claims of the defendant the sum of Ten Thousand ($10,000.00 Dollars,) as damages for that on, to-wit, August 28, 1967, on First Avenue, North, between 73rd Streets, Birmingham, Alabama, plaintiff was driving his motor vehicle when defendant, W. R. Jones, wilfully and wantonly injured plaintiff by wilfully and wantonly operating another motor vehicle then and there as to cause said motor vehicle he was operating to collide with the automobile which plaintiff was driving, and plaintiff avers that as a proximate consequence of said wilfulness and wantonness plaintiff was injured and damaged as follows: His two-day-old 1967 Volkswagon was demolished; * * * For these damages plaintiff claims Ten Thousand Dollars ($10,000.00) as aforesaid. Plaintiff claims punitive damages. Hence this suit.'

The complaint was filed October 9, 1967, served on defendant October 20, 1967. A default was entered November 21, 1967, with leave to prove damages. On December 27, 1967, plaintiff withdrew his jury demand and executed a writ of inquiry before the judge, who entered a general judgment on the complaint and assessed damages in the amount of $1500, together with costs.

On April 30, 1968, writ of garnishment on judgment was issued to Southern Railway System, and was served May 14, 1968. Garnishee filed answer on June 12, 1968, and notice of answer was served on defendant June 20, 1968. Additional garnishment was filed and served on The First National Bank of Birmingham, Roebuck Branch, with notice to defendant served July 5, 1968.

It appears from the record that defendant, W. R. Jones, filed a petition for voluntary bankruptcy in the Federal District Court in Birmingham and was duly adjudicated a bankrupt on September 18, 1968. In conjunction with the petition in bankruptcy, defendant asked dismissal of the garnishments against him. The referee in bankruptcy refused to order dismissal on the ground that the judgment on which the garnishment was issued might be nondischargeable under authority of Pridgen v. Head, 282 Ala. 193, 210 So.2d 426, and that the question should be decided in state court.

Subsequent to order of referee in bankruptcy, defendant-appellee filed a pleading in the case entitled 'Defendant's Motion to set Aside, Dismiss and Quash Writ of Garnishment on Judgment,' on September 27, 1968, and the matter was set fot hearing on October 2, 1968.

For the purpose of this appeal this motion will hereafter be referred to as the Motion to Quash Garnishment.

The motion to quash contained 5 paragraphs ending in a prayer that the court would declare the judgment upon which the garnishment was issued subject to discharge in bankruptcy and dismiss the garnishment.

Paragraphs 1 and 2 of the motion to quash set up the facts of the filing of suit, and that it contained 2 counts, one on simple negligence and another on willful and wanton injury; that a default was entered, with writ of inquiry and a judgment rendered generally on the complaint as a whole.

Paragraphs 3 and 4 stated the events in bankruptcy and attached and incorporated a copy of the referee's order referring the question of dischargeability to state court.

Paragraph 5 contained recital as to the events of the accident out of which the suit originally arose and insisted that such events would not support the charge of willful and wanton conduct and injury and thus the judgment was subject to discharge in bankruptcy.

Plaintiff demurred to the motion to quash on 10 grounds. Grounds 7, 8, and 9 are set out here:

'7. For that the entire record in this cause affirmatively shows that the issue of defendant's wanton and willful injury of plaintiff has been finally adjudicated in plaintiff's favor and cannot be attacked except by direct appeal properly perfected.

'8. For aught appearing there was testimony introduced at trial which fully supported the allegation that defendant willfully and wantonly injured plaintiff.

'9. For that it affirmatively appears that the nil dicit judgment is a binding adjudication of the truth of the allegation that defendant willfully and wantonly injured plaintiff.'

Plaintiff further filed a motion to strike defendant's motion to quash. The motion to strike generally covered the same grounds as the demurrer, but had attached certain memorandum notes made by the trial judge at the time of the testimony taken on the writ of inquiry.

The trial court overruled the demurrer and denied the motion to strike, and the record discloses the following minute entry:

'MINUTE ENTRY--On this the 10th day of January, 1969, came the parties by their attorneys, and plaintiff demurs to the defendant's motion, assigning grounds One to Ten inclusive, and said demurrer is by the court heard and considered, whereupon,

'It is ordered and adjudged by the court that said demurrer be and the same is hereby overruled; plaintiff files motion to strike defendant's motion to set aside, dismiss and quash writ of garnishment, and the same having been fully considered and understood by the court,

'It is ordered and adjudged by the court that this motion be ane the same is hereby overruled; the Court, having fully considered the pleadings in this cause and further reviewing and considering the case of Pridgen v. Head, 282 Ala. 193, 210 So.2d 426 is of the opinion that the complaint and factual issues in the case under consideration are not within the meaning of 'willful and malicious' injury used in the exception in the Bankruptcy Act, whereupon,

'It is considered and adjudged by the court as follows, to-wit: '1. The complaint and factual issues presented are not within the meaning of 'willful and malicious' injury used in the exception in the Bankruptcy Act. 2. The judgment in this cause is dischargeable in bankruptcy. 3. The defendant's motion to quash the garnishment in this cause is granted. 4. The garnishments heretofore issued to the Southern Railway System and the First National Bank of Birmingham are hereby quashed and the garnishees ordered discharged. 5. The Clerk of this Court is directed to pay over to Defendant, W. R. Jones, or his attorney-of-record, Prentiss M. Rainey, all monies paid into Court, after deducting the cost of Court.''

There was no testimony transcribed at the execution of the writ of inquiry to indicate the factual basis of the judgment. The notes of the trial judge cannot be considered as a part of the record and therefore have no value as evidence for our consideration. However, the presence of such notes does indicate that there was testimony taken by the judge below prior to his entry of judgment.

Appellant has made five assignments of error. The first is that the court erred in overruling plaintiff's demurrer to defendant's motion to quash the garnishment. The second error charged is that of overruling the motion to strike defendant's motion to quash. The third is substantially as the second. The fourth and fifth is that error was committed in quashing the garnishment. The argument in brief as to assignment one is adopted as to three, four and five. The matter for decision here is properly raised under any of the assignments, and we decline to deal with the technicalities of the pleadings, but will approach the matter on the issue of whether the motion to quash the garnishment should have been granted.

It is to be noted that both appellant and appellee cite the case of Pridgen v. Head, 282 Ala. 193, 210 So.2d 426, as authority for their respective positions. We have set out above the minute entry of the trial court and it indicates that the trial judge considered Pridgen v. Head, as authority for his decree. The decree specifically states this to be true.

Thus it is clear that there is confusion as to the meaning of Pridgen v. Head. Since the question here is almost identical with that of Pridgen, and involves matters of first impression, we shall presume to determine the meaning of that decision and apply it to the case at bar.

This Court is bound by prior decisions of the Supreme Court of Alabama, and of course, this includes Pridgen v. Head. Let it clearly be understood that what follows in this opinion is our interpretation of that case, and its application to other principles of law related thereto, and in no manner is meant to be contrary thereto.

As we see them, the questions involved in the consideration of this appeal are the following (a) What is the effect of a general judgment under a complaint alleging simple negligence in one count and willful and wanton conduct in a second? (b) Is such judgment, though by default with writ of inquiry, final after expiration of statutory provisions for review? (c) Is a willful and wanton judgment, as defined by Alabama courts, non-dischargeable in bankruptcy under the exception of dischargeability in Section 17, Subdivision a (2), of the Bankruptcy Act? (d) What shall be looked to in a particular case to determine if a claim or judgment falls within the exception to dischargeability? (the form of complaint, the record proper, or evidence aliunde, the recollection of the evidence presented on writ of inquiry by the judge entering the judgment.)

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3 cases
  • Britain v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 24, 1988
    ...their orders and judgments, although a judge should not merely 'change his mind' without sufficient cause or reason. Bice v. Jones, 45 Ala.App. 709, 718, 236 So.2d 718, cert. denied, 286 Ala. 733, 236 So.2d 727 The facts before the Court indicate the State was not represented at the initial......
  • Carter v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 20, 1982
    ...their orders and judgments, although a judge should not merely "change his mind" without sufficient cause or reason. Bice v. Jones, 45 Ala.App. 709, 718, 236 So.2d 718, cert. denied, 286 Ala. 733, 236 So.2d 727 (1970). "The rule of the common law is thus stated in 34 Corpus Juris, Section 4......
  • Bice v. Jones, 6 Div. 775
    • United States
    • Alabama Supreme Court
    • June 11, 1970
    ...W.R. Jones for certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Bice v. Jones, 45 Ala.App. 709, 236 So.2d 718. Writ All the Justices concur except MADDOX, J., not sitting. ...

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