Ex parte Biddle, 8 Div. 661

• Citation: 61 So.2d 803,258 Ala. 190
• Decision Date: 20 November 1952
• Docket Number: 8 Div. 661
• Parties: Ex parte BIDDLE.
• Court: Alabama Supreme Court

Page 803

61 So.2d 803

258 Ala. 190

Ex parte BIDDLE.

8 Div. 661.

Supreme Court of Alabama.

Nov. 20, 1952.

Clark E. Johnston, Jr., Albertville, for petitioner.

Marion F. Lusk, Guntersville, and Jackson, Rives, Pettus & Peterson, Birmingham, for respondent.

FOSTER, Justice.

This is a petition for certiorari for the purpose of reviewing a judgment of the Circuit Court of Marshall County, correcting nunc pro tunc a minute entry of that court dated September 17, 1951. On that date the minute entry shows that plaintiff elected to take a nonsuit on account of the adverse rulings of the court; whereupon it was ordered that said nonsuit be granted. But there was no final judgment disposing of the case. An appeal was taken by plaintiff to this Court and, on motion of appellee, it was dismissed because the minute entry did not show a final judgment, Ala.Sup., 58 So.2d 596. Thereupon the defendant in the court below filed a motion to direct the clerk to write up the judgment of the court to show that defendant is allowed to go hence with his costs in that behalf incurred. The motion came on for hearing on June 13, 1952, and was granted on that day and a judgment rendered ordering a correction of the prior minute entry so as to contain the necessary provisions for a final judgment as prayed for in the motion. There was no change in the date of the prior minute entry but it remained dated September 17, 1951 as originally entered.

The objection to that judgment, made by plaintiff below in his petition to this Court for a writ of certiorari, is in not redating the minute entry so as to be June 13, 1952 when the motion was granted. The effect of leaving the date September 17, 1951, is thought by petitioner to cut off an appeal from that judgment under section 788, Title 7, Code. But that question is controlled by other matters.

Defendant in the trial court contends that certiorari is not the proper remedy, but that mandamus directed to the trial judge to redate the judgment of September 17, 1951 is the appropriate remedy. Mandamus has been used for a similar purpose in some of our cases.

In Lanier v. Richardson, 72 Ala. 134, a petition for mandamus was filed in the circuit court to be directed to the judge of probate where a will contest had been tried by a jury and verdict rendered. The verdict was received on Saturday morning March 4, 1882. When the court received the verdict it discharged the jury and adjourned without setting a day to enter a judgment on the verdict. That night the clerk entered a formal judgment on the minutes. It was contended that the entry could not legally have been made until Monday March 6th. The petition for mandamus was to require the judge of probate to date the entry as of March 6th instead of March 4th. The trial court denied the mandamus and on appeal this Court affirmed such ruling. To the same effect is the case of State ex rel. Pinney v. Williams, 69 Ala. 311.

Another case is Ex parte Louisville & Nashville R. R. Co., 214 Ala. 489, 108 So. 379. In that case the cause was heard on December 11, 1924, and a decree was rendered on January 27th thereafter, but dated December 11th. It was then too late to review by appeal the decree of December 11th, thirty days having passed when the decree was in fact rendered. This Court granted mandamus to require the judge to redate the decree as of the date when it was rendered.

It is said that the writ of certiorari will not be employed to inquire into the correctness of the judgment where the forms of the law have been complied with and the court had jurisdiction (of the parties and subject matter). It may be used to inquire into the external validity and regularity of a proceeding, but not its intrinsic correctness. Ex parte Slaughter, 217 Ala. 515, 116 So. 684; Sims v. Sims, 250 Ala. 494, 35 So.2d 89.

Another principle is that common-law certiorari will not be awarded when an adequate remedy is available by appeal. Fowler v. Fowler, 219 Ala. 457, 122 So. 444. So that, if a judgment is void and therefore will not support an appeal, it may be abrogated by certiorari. Beach v. Lavender Bros., 138 Ala. 406, 35 So. 352; Ex parte National Lumber Mfg. Co., 146 Ala. 600, 41 So. 10.

Appeals from judgments in proceedings having the qualities of that here involved have been heard and determined on their merits without question as to whether the statute applicable to appeals from any final judgment is available. Tippins v. Peters, 103 Ala. 196, 15 So. 564; Robertson v. King, 120 Ala. 459, 24 So. 929; McGowan v. Simmons, 185 Ala. 310, 64 So. 569; Campbell v. Beyers, 189 Ala. 307, 66 So. 651; Home Ins. Co. v. Shriner, 235 Ala. 65, 177 So. 897; Id., 235 Ala. 165, 177 So. 890, 114 A.L.R. 574; Metropolitan Life Ins. Co. v. Estes, 236 Ala. 294, 181 So. 775. These cases are distinguishable from Lanier v. Richardson, supra; Ex parte Louisville & Nashville R. R. Co., supra, and State ex rel. Pinney v. Williams, supra, in that in the latter cases there does not appear to be a judgment of such formal sort as would support an appeal to review the question of whether the judgment should be redated.

Petitioner contends that an appeal will not lie to accomplish the purpose here sought because more than six months have expired from September 17, 1951, which is the date of the final judgment. But the question now is whether an appeal will lie from the judgment of June 13, 1952, correcting the minute entry of September 17, 1951. It is the entry of June 13, 1952 which petitioner claims was erroneous and should be corrected in this proceeding to enable him to appeal from the amended judgment dated September 17, 1951, which it is thought is not available as it now appears. We see nothing in the way of such appeal from the amendatory judgment of June 13, 1952. But whether it properly left the original date in the amended judgment can be determined on such an appeal depends upon the proceedings which were had on the motion to amend as shown by the record. The nature of the record on appeal, sufficient to review the judgment of June 13, 1952, was referred to in our recent case of Lipscomb v. Bessemer Board of Education, Ala.Sup., 61 So.2d 112, where the authorities are cited.

It is not too late for an appeal to be taken from the judgment of June 13, 1952. But the present record in that respect contains no more than the application and judgment on it, although there was a copy of the original minute entry of September 17, 1951 in the record on review in the former appeal. That status may be sufficient to present the question of law which seems to be the only issue in respect to the judgment of June 13th. That is, whether the amended judgment should be dated as of June 13, 1952 or September 17, 1951. For the benefit of the parties who have discussed the question of law, we think it would be well for us to point out some applicable principles which may save the trouble and expense of a useless appeal.

It was said in Lanier v. Russell, 74 Ala. 364: 'When, however, there is a trial by jury, in a common law proceeding, and the jury returns a general verdict, the judgment, not being arrested, follows the verdict, as the conclusion follows the premises in any other syllogism.' And 'yet the judgment bears date, and should bear date, of the day the proceedings were had in the court.' And, again: 'We think a judgment, following a verdict, takes effect as of the day the verdict was rendered, unless there is something in the record showing it was not pronounced on that day.' It is likewise so stated in Lanier v. Richardson, supra.

In Lewis v. Martin, 210 Ala. 401 (6, 7 and 8), 410, 98 So. 635, 643, it is said that 'the entry of record of 'the mind or determination of the court audibly expressed' is the judgment or decree of the court, and not the verdict. (Citing cases.) And the ministerial act of entry record or registry of the 'determination' of the court must be performed before that 'determination' becomes the judgment, decree or order thereof (citing cases), unless it be an order of continuance of a motion for new trial or rehearing, the regularity of which entry may be waived by the respective parties in adverse interest'. Those principles are also stated in Lanier v. Richardson, 72 Ala. 134.

In Ex parte Louisville & Nashville R. R. Co., 214 Ala. 489, 108 So. 379, 381, it is said in referring to Bell v. Otts, 101 Ala. 186, 13 So. 43, that 'a judgment is a final consideration and determination by a court having jurisdiction of the matter submitted, and should be in form, always be complete and certain in itself, showing that it is the court's adjudication'. And that 'in this jurisdiction the period of limitation begins to run from the time of the rendition of an appealable judgment, order or decree'.

We have followed the theory that when the court receives and enters on the docket the verdict of the jury, such entry is generally treated as a pronouncement of judgment accordingly, although it is not always so expressed in the bench notes. Lanier v. Richardson, supra; Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716; Ex parte Curry, 248 Ala. 384, 27 So.2d 630. Other authorities seem to be in accord with that principle. 3 Corpus Juris page 1058, section 1056; 4 C.J.S., Appeal and Error, § 445; 1 Freeman on Judgments page 264, note 12.

In the case of Campbell v. Beyers, 189 Ala. 307, 66 So. 651, the Court draws a distinction between a situation where the record evidence shows that the judge did not in fact pronounce judgment, but should have done so, and one where he did in fact pronounce judgment, but it was not entered formally on the minutes. In that case there was a verdict signed by the foreman, endorsed on the summons and complaint, showing a finding for plaintiff. The verdict was complete. The court made no memorandum ordering a judgment or noting the verdict. The clerk entered a judgment on the minutes after the term. That judgment...