Ex parte Anderson

• Decision Date: 30 October 1941
• Docket Number: 8 Div. 152.
• Parties: Ex parte ANDERSON.
• Court: Alabama Supreme Court

4 So.2d 420

242 Ala. 31

Ex parte ANDERSON.

8 Div. 152.

Supreme Court of Alabama

October 30, 1941

Rehearing Denied Nov. 13, 1941.

Street & Orr, of Guntersville, for petitioner.

Claud D. Scruggs, of Guntersville, for respondent.

PER CURIAM.

This is a petition for mandamus to be directed to a circuit judge commanding him to vacate a judgment setting aside a default judgment.

The record shows that within thirty days after service of the summons and complaint on an alleged agent of defendant and after the expiration of thirty days after service on the alleged president of defendant, defendant filed a motion to set aside the service upon defendant on the ground that the said alleged agent on whom service was had maintains no office as agent of defendant in the county in which suit was filed, and that defendant has no agent domiciled or residing or having an office in that county, and is not doing business by agent in said county and could not be sued in it for that reason. And in the same instrument it is alleged that the suit ought to abate and that the court ought not to have taken further jurisdiction of this cause for the same reason. The motion and plea were sworn to.

After the filing of said motion and plea, and after the expiration of thirty days from service, and on Monday, January 6, 1941 an entry of judgment by default was made by the clerk reciting the absence of the judge, and presence of the clerk and that defendant being called comes not but makes default and that it was proven that on the 29th day of November 1940, a copy of the summons and complaint was served on defendant by leaving a copy of it with Frank M. Jones who is proved to have been an agent of the defendant at that time, and on the 13th of November, 1940, a copy of it was served on Thomas W. Wert who is shown to have been at that time the president of defendant, and that defendant has not pleaded or demurred to or otherwise answered said complaint. The clerk thereupon rendered a judgment by default against defendant, and the policy of insurance sued on being produced, the clerk further proceeded to ascertain the amount due plaintiff on said policy to be $20,000, and judgment rendered for that amount with the costs.

On February 4, 1941, defendant filed a motion to have the court vacate and set aside said order rendering judgment on the ground that the clerk had no authority to render it. This motion was filed in thirty days after the said default judgment was rendered by the clerk, if that is material. After continuing said motion a time or two, it was granted on September 3, 1941. An amendment to the motion was filed April 10, 1941, setting up a meritorious defense.

This proceeding is to review the judgment of the court granting defendant's motion to vacate and set aside the default judgment.

All the proceedings were had before the Code of 1940 became effective. We are therefore to look to sections of the Code of 1923 as here controlling. Those sections are 9455, 9495, 7881, Rules 9, 10 and 11 of the Circuit Court practice. Reliance is had chiefly on section 9455, which is as follows:

"Rule days.-The first Mondays of each month shall be rule days for all circuit courts. Upon rule days every circuit court shall be deemed to be open and in session for the return of writs and process issuing from or returnable to such courts for the entry of defaults and judgments by default, and decrees pro confesso; and also for the purpose of receiving, entertaining and disposing of all matters, rules, orders, or other interlocutory proceedings which parties may make or apply for, and which by the practice of the court may be entered as matter of course or of right on application, or which are or may be granted without any special order of the judge. In the absence of the judge, the clerk or register may enter up any such order, judgment or decree."

But it must be construed in the light of other features of the Code. Section 9495 provides that if judgment by default be rendered for plaintiff, it may be entered up by the clerk under the direction of the court. Section 7881 provides that when an interlocutory judgment shall be given in any action brought on an instrument of writing for the payment of money only, and the damages rest in computation, the court may refer it to the clerk to assess and report the damages and may enter judgment therefor; and either party may have a jury. Rule 9 of Circuit Court practice provides that defaults may be entered on the docket in vacation. This rule has been long standing (taken out of the Code of 1940, as has section 9455). It did not authorize a judgment by the clerk, but only a "default," after which defendant had no right to plead (Rule 10), but on timely application showing merits the default may be set aside (Rule 11), and, if not, advantage may be taken at the next term (Rule 9). That means that judgment could be rendered at the next term. That rule was never understood to authorize the clerk to render a judgment so far as our cases show. See Hudson v. Wood, 102 Ala. 631, 15 So. 356; Woolsey v. M. & C. R. R. Co., 28 Ala. 536; Rhodes v. McFarland, 43 Ala. 95; Wagnon v. Turner, 73 Ala. 197. The foregoing is the general construction of such form of authority....