Ex parte Alabama Fuel & Iron Co.

• Decision Date: 13 May 1915
• Docket Number: 690
• Citation: 193 Ala. 496,69 So. 115
• Court: Alabama Supreme Court
• Parties: Ex parte ALABAMA FUEL & IRON CO.

69 So. 115

193 Ala. 496

Ex parte ALABAMA FUEL & IRON CO.

No. 690

Supreme Court of Alabama

May 13, 1915

Action by Addie Haywood, as administratrix, against the Alabama Fuel & Iron Company. After a dismissal the cause was reinstated on the trial docket, and defendant petitions for a writ of mandamus, commanding the judge to vacate the order of reinstatement. Mandamus awarded.

Percy Benners & Burr, of Birmingham, for appellant.

W.A Denson, of Birmingham, for appellee.

SAYRE J.

This is an application for a writ of mandamus to the judge of the Sixteenth circuit, commanding him to vacate and annul an order made on the 18th day of September, 1914, whereby he reinstated upon the trial docket of his court the cause of Addie Haywood, as Administratrix, etc., v. Alabama Fuel &amp Iron Company, which said cause had been previously, on September 29, 1913, dismissed of the court's own motion for want of prosecution. The return to the rule nisi shows and it is not disputed at any place in the record, that when respondent made the order restoring the cause to the docket, he had before him, and acted upon, a letter addressed to the judge by the attorney who had, before that, appeared of record for defendant in the cause, dated September 10, 1914, with inclosures. The order of reinstatement was made upon the motion of the attorney for plaintiff in the cause, and over the objection of attorneys for defendant, who came into the cause at the time under circumstances to be stated; their appearance being limited to the special purpose of opposing the motion.

This letter and its inclosures, about the authenticity of which there is no dispute, and statements made at the time by the attorneys opposing the motion, show that at the time of the accident out of which the suit arose defendant company had an indemnity agreement with the Employers' Indemnity Company; that in pursuance of certain stipulations of that agreement the defense was turned over to the exclusive control of the indemnity company, whose attorney entered a general appearance in the cause for defendant, as he had authority to do under the indemnity agreement, and prepared the case for trial; that on September 26, 1913, attorneys then representing the respective parties as aforesaid, entered into an agreement for continuance, but that, each assuming that the other would attend to the matter of having a formal order of continuance entered by the court, this agreement was not brought to the notice of the court, which, upon call of the cause, dismissed it, ex mero motu, for want of prosecution. At the time of the agreement the attorney for defendant noted, upon a letter he had written to the clerk of the court concerning the summoning of witnesses in the cause, and which had been returned to him with the clerk's answer and signed with his initials, a memorandum that the case had been continued. This letter and memorandum was before the judge. Shortly before the spring term, 1914, defendant's attorney, learning then for the first time that the cause had been dismissed, entered into a parol agreement with plaintiff's attorney that he would have the order of dismissal set aside and the cause reinstated, and that, inasmuch as he would be present at the court, while plaintiff's attorney had an engagement...