Duke v. Scotch Lumber Co., 1 Div. 698

CourtSupreme Court of Alabama
Citation94 So.2d 194,266 Ala. 53
Docket Number1 Div. 698
PartiesWillie Mae DUKE et al. v. SCOTCH LUMBER COMPANY, Inc.
Decision Date04 April 1957

Grady W. Hurst, Jr., Chatom, for appellants.

Adams, Gillmore & Adams, Grove Hill, for appellee.

STAKELY, Justice.

On January 25, 1956, Scotch Lumber Company, Inc., (appellee) filed a bill of complaint in the Circuit Court of Clarke County, in Equity, against Willie Mae Duke and Hilton Duke (appellants), praying for an injunction restraining respondents from cutting or removing any timber from lands, more particularly described in the bill of complaint, and alleged to be owned in fee by the complainant. The bill further alleges that respondents have declared their intentions to cut timber from all or some portions of the land and have actually commenced cutting timber from a portion of the land. Upon presentation of the bill to the circuit judge, he directed the injunction issue upon complainant entering into bond in the sum of $600. Bond was filed and approved, the writ of injunction and the summons issued on the bill and both respondents were served with summons and writ of injunction on January 25, 1956.

On March 17, 1956, no pleading having been filed by either of the respondents, decrees pro confesso were entered against them by the register on motion of the complainant and the cause was submitted on request of complainant for final decree. Final decree was entered March 19, 1956, making the injunction permanent and directing that a copy of the decree be served on each respondent. Both respondents were served with copies of this final decree on March 29, 1956.

On April 16, 1956, respondents presented to the judge a motion to set aside the final decree, the submission and the decrees pro confesso and sought leave to file an answer and cross bill. The allegations of the motion sought to excuse respondents for failure to plead within the time allowed and alleged that the respondents each had a meritorious defense. Upon presentation of this motion to the judge he appointed a day for hearing the motion and entered an order suspending the decree pending a hearing on the motion.

On the appointed day testimony was taken orally in open court before the judge. At this hearing it appears that the judge concerned himself primarily with the allegations as to whether appellants did in fact have a meritorious defense to the suit. On the testimony presented the judge concluded that the appellants could not show any valid claim...

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3 cases
  • Mettee v. Bolling, 1 Div. 617
    • United States
    • Supreme Court of Alabama
    • April 4, 1957
    ......Sloss-Sheffield Steel & Iron Co., 215 Ala. 334, 110 So. 574, 49 A.L.R. 1206; Anderson v. ......
  • Ogle v. Ogle, 8 Div. 4
    • United States
    • Supreme Court of Alabama
    • October 8, 1959
    ...that no appeal will lie from a decree overruling a motion for a rehearing in equity. Equity Rule 62, supra; Duke v. Scotch Lumber Co., 266 Ala. 53, 54, 94 So.2d 194; Wheeler v. Bullington, 264 Ala. 264, 266, 87 So.2d 27; Capps v. Norden, 261 Ala. 676, 680, 75 So.2d 915; Wood, Wire & Metal L......
  • Slaton v. Slaton, 8 Div. 116
    • United States
    • Supreme Court of Alabama
    • November 29, 1962
    ...the final decree. See Bolling v. Mettee, 269 Ala. 287, 112 So.2d 485; Vaughan v. Vaughan, 267 Ala. 117, 100 So.2d 1; Duke v. Scotch Lumber Co., 266 Ala. 53, 94 So.2d 194; Carlisle v. Carmichael, 222 Ala. 182, 131 So. 445. It is only when the final decree is void on the face of the record th......

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