Coker v. Farmers Mut. Exchange
| Decision Date | 05 January 1983 |
| Citation | 425 So.2d 489 |
| Parties | Joyce COKER v. FARMERS MUTUAL EXCHANGE. Civ. 3425. |
| Court | Alabama Court of Civil Appeals |
Sherman B. Powell, Jr., of Powell & Powell and J. Tilden Dillard, Decatur, for appellant.
Harvey Elrod of Hutson & Elrod, Decatur, for appellee.
The plaintiff sued the defendant on an open account. After a response by defendant and other proceedings a judgment was entered against the defendant. The defendant thereafter filed a rule 59, A.R.Civ.P., motion to vacate the judgment. The defendant's motion was denied by the learned and distinguished trial judge and she appeals.
The dispositive issue is whether the trial court abused its discretion in failing to vacate the judgment. We find such abuse of discretion as to require reversal and reverse and remand.
It is not necessary to set out in detail the facts surrounding this appeal. The pertinent facts are as follows:
The plaintiff sued the defendant. The defendant filed a motion to dismiss the plaintiff's complaint. The case was then transferred from Morgan County to Lawrence County. The case was continued upon request of defendant.
Thereafter, on February 5, 1982, a motion docket was held for the Lawrence County Circuit Court. Defendant and/or her attorney were notified of this setting. Neither the attorney nor the defendant appeared at the February motion docket. Apparently, the defendant's motion to dismiss was denied at this time and without dispute the case was set for trial on March 23, 1982.
It is undisputed that neither the attorney nor the defendant received notification of the trial date. On March 23, 1982, the case proceeded to trial without the presence of defendant or her attorney and, on March 24, 1982, a judgment was entered against defendant.
Within thirty days after the judgment the defendant filed what is considered a rule 59 motion to vacate the judgment. In this motion, defendant's attorney alleged he had not received notice of the trial date as required by the rules of civil procedure.
A hearing was held on defendant's motion and the motion was thereafter denied. From this denial, defendant appeals.
It is clear that the granting or denying of a rule 59 motion rests largely in the discretion of the trial court. Sangster v. Sangster, 366 So.2d 1136 (Ala.Civ.App.1979). However, such action by the trial court is subject to review at the appellate level and the trial court's action may be reversed where a legal right was abused and the record plainly and palpably shows the trial court is in error. Robertson Banking Co. v. Ebersole, 331 So.2d 278 (Ala.1976).
We note that defendant's attorney is an "out of county" attorney, to wit, the case was tried in Lawrence County; the attorney is of Morgan County. The same attorney represented defendant from the initial pleading through this appeal.
Rule 40(b), A.R.Civ.P., provides as follows:
In this instance, it is without dispute that the out of county attorney was not notified of the trial date pursuant to rule 40(b). It is equally without dispute that within thirty days of a judgment being granted against the defendant, the out of county attorney's client, the defendant, filed the appropriate motion to vacate the judgment.
This court does not believe the motion docket hearing in February is sufficient to obviate the requirements of rule 40(b). It is noted that rule 78, A.R.Civ.P., allows under certain conditions a trial court to deny motions to dismiss without oral hearings, etc.
None of the three methods of notification specified in rule 40(b)...
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