Brown v. Brown

• Decision Date: 18 June 1925
• Docket Number: 7 Div. 581
• Citation: 213 Ala. 339,105 So. 171
• Parties: BROWN v. BROWN.
• Court: Alabama Supreme Court

105 So. 171

213 Ala. 339

BROWN v. BROWN.

7 Div. 581

Supreme Court of Alabama

June 18, 1925

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by Isaac Brown against Victoria Brown. Judgment for plaintiff, and defendant appeals and applies for mandamus. Transferred from Court of Appeals under section 7326, Code of 1923. Affirmed; mandamus denied.

See also, Brown v. Brown (Ct.App.) 105 So. 169; Ex parte Brown, 105 So. 170.

Culli Hunt & Culli, of Gadsden, for appellant.

Dortch Allen & Dortch, of Gadsden, for appellee.

GARDNER J.

The judgment by default will support the appeal, but the ruling denying appellant's motion to set aside such judgment is not reviewable on said appeal. Ex parte Gay, 7 Div. 515 ( W.O.W. v. Gay) 104 So. 898; Eminent Household v. Lockerd, 202 Ala. 330, 80 So. 412.

The ruling of the court in this respect is only reviewable as for an abuse of discretion; the appropriate remedy in the instant case being by mandamus. Eminent Household v. Lockerd, supra; Ex parte Doak, 188 Ala. 406, 66 So. 64; Ex parte Gay, supra. Petition to this effect is presented with the record on this appeal.

A sufficient outline of the evidence offered on the hearing of the motion appears in the statement of the case, and need not be here repeated. That on the part of defendant disclosed that counsel had been employed for a period of four months before the rendition of the judgment, and no pleadings filed nor appearance entered. While the affidavit of counsel states that since her employment she had been in "wretched condition" of health, yet it is not made to appear that notice to defendant could not have been given or defendant advised to employ other counsel. Defendant is to be held accountable for the neglect of her counsel, and indeed she was neglectful herself in failing to make any inquiry whatever. Ex parte Walker, 54 Ala. 577; Eminent Household v. Lockerd, supra; McCord v. Harrison, 207 Ala. 480, 93 So. 428; Kirkland v. Franke, 207 Ala. 377, 92 So. 472.

The affidavits offered by plaintiff as to the statements made by defendant, undenied, add confirmation to the view that defendant was entirely indifferent to the suit, and deliberately ignored it. There has very clearly been shown no abuse of discretion, and petitioner is not entitled to the writ of mandamus.

The fact that in the sheriff's return of service of process the name appears "Victory Brown" instead of Victoria Brown will not suffice for a reversal of the judgment by default. The name is followed by the further descriptive word "defendant," and that defendant was in fact duly served is without dispute. As said by this court in Morrow v. Hardware Co., 165 Ala. 331, 51 So. 766:

"The disposition of this court *** has always been to indulge in no nice criticisms

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