Capps v. Norden

• Decision Date: 11 November 1954
• Docket Number: 1 Div. 592
• Parties: J. M. CAPPS v. M. A. NORDEN.
• Court: Alabama Supreme Court

Page 915

75 So.2d 915

261 Ala. 676

J. M. CAPPS v. M. A. NORDEN.

1 Div. 592.

Supreme Court of Alabama.

Nov. 11, 1954.

Vickers & Thornton, Mobile, for appellant.

V. R. Jansen, Mobile, for appellee.

PER CURIAM.

This is an effort to review by appeal, or mandamus in the alternative, a decree of the circuit court in equity, rendered January 18, 1954, which set aside and vacated a former decree rendered October 30, 1953, on the ground that said decree was void. The latter decree was final on a bill in equity which sought a partnership settlement by Capps as plaintiff against Norden as defendant, and observed a recognized jurisdiction of a court of equity. The decree allowed the settlement prayed for, resulting in a balance found due plaintiff by defendant for which a judgment was rendered.

On December 17, 1953, the defendant Norden filed a motion to 'set aside and declare void an order dated October 30, 1953 purporting to be a final decree, and in support of said motion defendant assigns the following separate and several grounds'. One ground was that the order of submission and note of testimony are signed in blank and no pleading or evidence is noted to support the decree. The second ground was that the decree pro confesso, dated September 28, 1953, recites that the defendant 'has failed to appear and plead, answer or demur, when in fact there was filed on September 10, 1953 an appearance in writing executed by the defendant and giving the address where he could be notified of future proceedings in this cause'. The third ground was as follows:

'The defendant attaches hereto as exhibit a blank form of printed appearance furnished at the taxpayers expense to litigants and attorneys for filing in causes pending in the Circuit Court of Mobile County, Alabama, which form is frequently and customarily used by defendants and attorneys on the law side of the circuit court to indicate the appearance of the defendant and the desire to defend the complaint filed against them and this defendant prepared and executed a paper in substantial form with the exhibit hereto attached, for that, he had not employed a solicitor and assumed, under the facts set out in the following grounds, that it would be unnecessary for him to employ a solicitor since in normal procedure this cause would not be set for trial prior to the January or February settings and the issues raised by the complaint would have been considered by another jury of this court and this defendant assumed that the determination of those issues would make it unnecessary for the employment of a solicitor or the expenditure of money in the defense of this proceeding and following the filing of said appearance or answer on September 10, 1953, this cause did not appear on the list of any cases on the typewritten dockets distributed among the attorneys by the register of the circuit court for call on motion day nor did this cause appear on any mimeographed monthly docket issued by the register of the circuit court for distribution among the attorneys for the setting of pending causes for trial nor has any notice by letter, personal service, telephone or otherwise been given to this defendant of the filing of any motion, of the taking of testimony, of the submission of said cause or of any entry of a final decree and said decree has endorsed upon it 'hold execution for thirty days' and this defendant learned by accident on December 14, 1953 that a decree pro confesso had been granted against him and further action taken including the entry of the final decree.'

The fourth ground was that while Capps was under probation on a sentence by the United States District Court Norden had an audit made of his books and the auditor reported his findings to the state solicitor. The bill of complaint in this suit was then filed; and thereafter the grand jury returned an indictment on October 26, 1953, charging Capps with embezzlement from this defendant. That on September 24, 1953, plaintiff committed an assault and battery on defendant, for which he was arrested, tried and convicted on October 26, 1953 in the inferior court; that such cases are given priority of trial over civil cases in the circuit court and ordinarily would be put for trial before this case would be set 'and if the said J. M. Capps has been or will be convicted by a jury of a charge of embezzlement there would be little probability of a need for a trial of the issues in this cause'.

The fifth ground was that defendant is not learned in the law, that he is not indebted to plaintiff, has never been a partner of plaintiff, 'and in view of the misunderstanding and misapprehension that prior to the trial of that cause the court would have determined some of the issues and that this defendant would be put to no further expense in his defense of this proceeding, that no notice of any kind was given him following the filing of his intention to contest this cause'. The sixth ground was that the judgment deprives him of property without due process of law.

On December 29, 1953 plaintiff filed a motion to amend an alleged clerical error or mistake of the register alleging that there was sufficient matter apparent on the record to amend by, and praying the court to permit the register to amend the record by completing the note of submission (which is in blank) so as to set out the proof upon which plaintiff rested his case, invoking section 567, Title 7, Code. This was accompanied with an affidavit of the register.

Those two motions, one by defendant and the other by plaintiff were heard and acted on in one decree, that of January 18, 1954, in which it was stated the motion to set aside the decree was granted on the ground that it was void, and the motion to amend was denied without comment. That is the decree to which we have referred as that which appellant seeks to review. We repeat that the decree which was set aside was dated October 30, 1953. The motion of defendant to set it aside was filed December 17, 1953. This was more than thirty days after the decree was rendered. Section 119, Title 13, Code; Equity Rules 62 and 65, Code 1940, Tit. 7 Appendix.

The only authority of the court of equity on motion to set aside the final decree after thirty days was on the ground that the decree was void, and it could not then be attacked in that manner for error in rendering it. An attack on the ground that it was void is in the nature of collateral. Constantine v. Constantine, Ala.Sup., 72 So.2d 831; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14. The four months statute, section 279, Title 7, Code, does not apply to equity. Ex parte Bergeron, 238 Ala. 665, 193 So. 113. The motion cannot be treated as a bill in the nature of a bill of review. Ex parte Bergeron, supra.

Therefore the question arises, first, whether the judgment of the court vacating the final decree of October 30, 1953 is such as will support an appeal. If an appeal will lie it is on the theory that it is a final judgment under section 754, Title 7, Code.

Equity Rule 62 justifies an appeal only when the decree on the motion for a rehearing modifies the decree sought to be set aside. Scott v. Scott, 247 Ala. 266, 24 So.2d 25.

When a judgment or decree is void on its face the court rendering it has the inherent power and should on motion vacate it. Griffin v. Proctor, 244 Ala. 537 14 So.2d 116; Constantine v. Constantine, supra. We do not seem to have a statute which expressly refers to a motion to set aside judgments void on their face. The right to vacate it is not dependent on statute. And when the court refuses to vacate it on motion claiming that it is void on its face, the remedy for review is settled as pointed out in the case of Griffin v. Proctor, supra, to be by appeal because that is a final decree, see, Constantine v. Constantine, supra; but if it grants the motion and restores the cause to the trial docket for such other proceedings as are available, mandamus is the proper procedure to review it.

This case is of the latter status. The order setting aside the decree had the effect of restoring the suit to the docket for another trial and was not a final decree and not governed by the general statute providing for an appeal from a final decree. Section 754, Title 7, Code.

But as stated, there was made on the submission in this Court an application for mandamus in the alternative if this Court should hold that the decree is not appealable. That is the proper practice and, therefore, we will proceed to determine whether the final decree in the cause which the court vacated was void as found and decreed by it.

If the decree is void, it is shown to be so on the face of the record for two reasons, one because there was no note of the submission except a blank form signed by plaintiff's attorney and duly filed. It is in words as follows:

'Note of Evidence

'At the hearing of this cause the following note of evidence was taken to wit:

'For Complainant

'J. Edward Thornton

'Solicitor for complainant'.

There also appears in the record an order of submission 'for decree on the pleadings and on the proof as noted'.

It is urged that another reason the judgment is void is because the decree pro confesso is alleged to have disregarded defendant's appearance in the suit. The record shows that on September 28, 1953 a decree pro confesso was rendered by a judge of the court, said decree reciting service on defendant more than thirty days before, and that he has failed to appear and plead, answer or demur to the allegations of the bill of complaint, and that on motion it is adjudged and decreed that the bill of complaint be taken as confessed. The record shows that the following instrument, purporting to be signed by defendant in person, was filed September 10, 1953:

'Comes M. A. Norden, the respondent in the above entitled cause, and makes his appearance before this court, expressly reserving the right to answer, demur or plead specially to ...