Eminent Household of Columbian Woodmen v. Lockerd

• Decision Date: 19 December 1918
• Docket Number: 8 Div. 142
• Citation: 202 Ala. 330,80 So. 412
• Parties: EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. LOCKERD.
• Court: Alabama Supreme Court

80 So. 412

202 Ala. 330

EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. LOCKERD.

8 Div. 142

Supreme Court of Alabama

December 19, 1918

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Action by Tinie Lockerd against the Eminent Household of Columbian Woodmen. Judgment for plaintiff by default, and defendant appeals. Appeal dismissed, and alternative motion for mandamus denied.

John R Tyson, of Montgomery, for appellant.

Lawrence E. Brown and John F. Proctor, both of Scottsboro, for appellee.

SAYRE J.

Judgment by default in the suit of appellee against appellant was rendered September 6, 1917. The transcript does not disclose the date of defendant's motion, but it does show that said motion was continued on September 22, 1917, and overruled March 23, 1918. The motion stated (1) facts going to show that defendant had a good defense, and (2) that defendant's attorney, who resided at Montgomery "while preparing to set up the defense of this defendant, was called to New York City on account of the serious illness of his daughter, and his time was taken up with caring for her and her removal to her home in Montgomery, Ala., until the judgment nil dicit in this cause was rendered."

Counsel for appellant state the proposition that the facts alleged in the motion, the sufficiency of which was not challenged by demurrer, were proved, and therefore the trial court committed error in overruling the motion. It has been the practice in proceedings for rehearing under the four-month statute, section 5372 of the Code, to consider the petition as in the nature of a declaration of facts upon which the petitioner predicates his claim for relief, and to which a demurrer will be entertained with further consequence as in the case of a declaration demurred to. Powell v Washington, 15 Ala. 803. But the present proceeding invokes the plenary power of the court to set aside its own judgments, for proper cause shown, within 30 days from the rendition of judgment as provided by the statute (Acts 1915, p. 708, § 3), and we are not advised that the practice above referred to obtains in such cases. Broadly speaking, it is the duty of the court on a motion of this character to see that the substantive law is enforced, and one requirement of that law, based upon sound policy, is that parties impleaded must be diligent in the assertion of their rights.

The action in this case was commenced in the circuit court of Jackson, July 30, 1917. Process to bring in appellant, as provided by law, was served on the insurance commissioner August 1, 1917. Notice reached the office of defendant's general counsel in Atlanta, Ga., August 8th, and on the same day he forwarded the file, containing information as to the defenses proposed, to counsel at Montgomery, who was in charge for appellant of all litigation in this state. August 20th, the counsel at Montgomery advised general counsel in Atlanta that an attorney at Scottsboro would be associated in defense, and requested a copy of the covenant (policy) sued upon and a copy of the constitution and by-laws of the defendant fraternal order. August 28th, counsel at Montgomery urgently repeated his request for copies, but by reason of absence from his office on business in Washington, D.C., first, and illness afterwards, the communications of August 20th and 28th were not answered by the Atlanta attorney until August 31st. The answer would have reached counsel at Montgomery in due course of mail September 1st, but on that day he was called out of the state by the illness of his...