Branson v. Moore Group, Inc.
| Decision Date | 30 September 1983 |
| Citation | 439 So.2d 116 |
| Parties | John W. BRANSON, d/b/a Branson Insurance Agency v. MOORE GROUP, INC., d/b/a Dudley L. Moore Insurance. 82-89. |
| Court | Alabama Supreme Court |
Donald H. Brockway, Jr. of Corretti & Newsom, Birmingham, for appellant.
Joyce E. May of Winston, Winston & May, Birmingham, for appellee.
This appeal is from a judgment entered by the Circuit Court of Jefferson County on May 26, 1982, in favor of plaintiff Moore Group, Inc. (Moore) against defendant John W. Branson (Branson). We find the appeal untimely and dismiss it.
Moore filed a complaint against Branson alleging that Branson was in default on a promissory note executed to it. The complaint claimed the amount due, $41,196.44, plus an attorney's fee of $6,229.47. By answer, Branson denied the allegations of the complaint.
Moore filed a request for admission of genuineness of a document attached to the request, marked as "Exhibit A," and identified as the promissory note. Branson's response admitted the document as genuine.
Next, Moore filed a motion for summary judgment with an attached affidavit signed by its vice-president. Branson filed a motion in opposition with an attached affidavit by the bookkeeper for Branson, setting forth a genuine dispute of fact between the amount claimed by Moore and the amount shown on Branson's records. This motion for summary judgment and a subsequent motion for summary judgment were denied by the circuit court.
On January 12, 1982, Moore served on Branson interrogatories and a request for production of documents. On March 10, 1982, Moore filed motions for an order to compel answers to interrogatories and an order compelling production. Both motions were granted on March 25, 1982. Branson's attorney requested that he be allowed until April 1, 1982, to comply with the order to answer interrogatories and the order to produce. The circuit court granted the extension and a subsequent extension until April 8, 1982.
Branson filed answers to interrogatories on April 16, 1982. Five days later on April 21, 1982, Moore filed a motion for sanctions pursuant to Rule 37(b) of Alabama Rules of Civil Procedure, stating that Branson had "failed to answer interrogatories or to produce the documents demanded by virtue of the Request for Production of Documents within 30 days." The motion further stated that the "Answers to Interrogatories ... were evasive, incomplete and frivolous." On April 28, 1982, the motion was continued to May 12, 1982, and on May 13, 1982, the judge granted the motion and entered a default judgment in favor of plaintiff and against defendant with leave to prove damages.
On May 26, 1982, in open court, the judge heard testimony and assessed damages in favor of plaintiff and against defendant in the amount of Thirty-One Thousand Four Hundred Ninety-Two and 18/100 Dollars ($31,492.18) and costs. On September 23, 1982, Branson filed a motion to set aside the default judgment, stating that the attorney for Branson had produced all that he was able to find which responded to the request for production and that they had continually made Branson's "warehouse available to Moore's attorney for...
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...(Ala.1983); Self v. Maynor, 421 So.2d 1279 (Ala.Civ.App.1982). While the denial of a Rule 60(b) motion is appealable, Branson v. Moore Group, Inc., 439 So.2d 116 (Ala.1983), the rule is not a substitute for appeal. Harper Plastics, Inc. v. Replex Corp., 382 So.2d 556 (Ala.1980); Pitts v. He......
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...Wiggly, Inc. v. McCormick, 411 So.2d 789 (Ala.Civ.App.1981). While the denial of a Rule 60(b) motion is appealable, Branson v. Moore Group, Inc., 439 So.2d 116 (Ala.1983), the rule is not a substitute for appeal and is not available to relieve a party from his failure to exercise the right ......
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...to Rule 60(b) is an order separate from the underlying judgment and is separately appealable as such. E.g., Branson v. Moore Grp., Inc., 439 So.2d 116, 118 (Ala.1983). Synovus does not appeal from "the underlying judgment" effected by the stipulation of dismissal filed by it and, concomitan......
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Lewis v. State
...So.2d 428 (Ala.1979). Notice of appeal must normally be filed within 42 days of the date of entry of the judgment. Branson v. Moore Group, Inc., 439 So.2d 116 (Ala.1983). A judgment certified by a trial court pursuant to Rule 54(b) is a final appealable judgment; the certification triggers ......