Dulin v. Johnson

• Decision Date: 15 June 1927
• Docket Number: 7 Div. 728
• Citation: 216 Ala. 393,113 So. 397
• Parties: DULIN v. JOHNSON.
• Court: Alabama Supreme Court

113 So. 397

216 Ala. 393

DULIN v. JOHNSON.

7 Div. 728

Supreme Court of Alabama

June 15, 1927

Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Action by Mrs. S.A. Johnson against T.J. Dulin. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Corrected and affirmed conditionally.

After judgment nil dicit for plaintiff, judgment for attorney's fees cannot be properly rendered without ascertainment on hearing of testimony (Code 1923,§ 7881).

Statement by SOMERVILLE, J.:

The plaintiff (appellee) sued the defendant (appellant) on a promissory note under seal for $648, due on December 17 1921, with interest from that date. The note provided for a reasonable attorney's fee for collection, and was credited with payment of $68. The cause came on to be heard and, defendant being called and not answering, as recited by the judgment entry, "On motion of the plaintiff's attorney the court renders judgment nil dicit in favor of the plaintiff, and against the defendant, for the sum of $816.89," and that judgment was formally entered as of the date of January 27, 1925.

Prior to this judgment defendant had filed no plea nor made any appearance other than a special appearance to file--in his own name--a motion to transfer the cause to the equity side of the docket, on the ground that:

"In executing said promissory note the plaintiff obligated the defendant in writing, which was made a part of the consideration of this obligation, that he place in the hands of the plaintiff in said cause his deed to a house and lot [[describing it], which in case of default of payment at or after maturity the defendant was to make or execute to the plaintiff a deed to said land, and said defendant, having defaulted in said payment of promissory note, now stands ready to execute deed to said land in full payment of said note on demand of plaintiff in said suit in a court of equity."

Plaintiff demurred to this motion on several grounds, among others that defendant's appearance was special only, and that the motion was not supported by an affidavit as required by law.

The judgment entry recites that the demurrer was sustained before judgment nil dicit was rendered. No demand was made by either party for trial by jury, and the record does not show that any writ of inquiry was ordered or executed.

On February 24, 1925, defendant by counsel moved for a new trial on the ground of accident or surprise and inability to reach the court before the case was called and judgment rendered.

On March 27, 1925, the record recites, the motion was heard and considered and granted, and the judgment of nil dicit was set aside, and the cause restored to the docket. It does not appear that this motion had been called to the attention of the court at any previous time, or that any order had been made continuing the motion, or otherwise keeping it alive till a future day.

Thereafter, on April 13, 1925, plaintiff presented her petition to the trial judge, sitting at Columbiana, setting up that the order granting a new trial was null and void because granted more than 30 days after judgment nil dicit was rendered and after the motion had been discontinued, and praying that said order be annulled. This motion was granted and the order for new trial was vacated and annulled on April 13, 1925. It does not appear that defendant was present or had any notice of this petition or the hearing thereon.

Thereupon, on June 23, 1925, defendant moved for a rehearing "under section 9521 of the Code," on the following grounds:

(1) For that defendant has been prevented from making his defense in said cause by accident, mistake, fraud, or surprise.

(2) For that said judgment is void in that it purports to have been rendered on a promissory note, commonly called a bond, and the instrument or paper writing on which judgment was rendered is not a promissory note.

(3) For that the judgment of the court rendered on plaintiff's petition on to wit, April 13, 1925, is void in that said judgment was rendered without notice having been given to defendant or to his attorney of record.

(4) For that said judgment is void in that it was not rendered at the courthouse of Clay county, Ala.

Plaintiff thereupon moved to strike from the record and dismiss this motion on numerous grounds. Defendant demurred to this motion on the grounds that the order setting aside the judgment was made at Columbiana, and at a place other than the courthouse of Clay county.

On January 19, 1926, plaintiff's motion was heard and granted, and defendant's motion for a rehearing was stricken as prayed--to which defendant duly excepted.

Defendant appeals, and assigns for error the several rulings, orders, and judgments of the trial court in favor of plaintiff.

Walter S. Smith, of Birmingham, for appellant.

Merrill & Jones, of Heflin, for appellee.

SOMERVILLE J.

The defendant's motion for the transfer of the case from the law side to the equity side of the docket, was not verified by affidavit as required by the statute, and the demurrer to the motion was properly sustained on that ground. Code, § 6490; Briggs v. Prowell, 207 Ala. 629, 93 So. 590. And, it should be added, the motion does not allege facts sufficient to justify the removal sought.

Under section 6670 of the Code, to sustain a judgment of the court granting a motion for a new trial after the lapse of more than 30 days from the date of the original judgment, the record must show an order made within the 30 days, "continuing [the motion] for hearing [at] a future day." Otherwise the judgment for new trial is void for want of jurisdiction. Howard v. A.F. & I. Co., 208 Ala. 500, 94 So. 531, and cases cited therein; Ex parte Margart, 207 Ala. 604, 93 So. 505.

Under this statute and these decisions the order and judgment of the circuit court of March 27, 1925, setting aside the judgment of nil dicit and restoring the cause to the trial docket, was null and void; and it was proper for that court to make an order at any time, on plaintiff's motion without notice to the defendant, vacating and annulling the void judgment. Johnson v. Johnson, 40 Ala. 247, 251; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184; Hobson-Starnes Coal Co. v. Ala., etc., Co., 189 Ala. 481, 66 So. 622. But, of course, the voided judgment was just as void without the order of vacation.

Under section 6710 of the Code, which counsel for appellant seems to have overlooked, a circuit judge may make orders interlocutory or final, in any cause pending before him, if he be...