Ex parte Bozeman

Citation213 Ala. 223,104 So. 402
Decision Date16 April 1925
Docket Number8 Div. 748
PartiesEx parte BOZEMAN. v. DILLARD. BOZEMAN
CourtSupreme Court of Alabama

Rehearing Denied May 28, 1925

Original petition by Minnie Bozeman for mandamus to Hon. B.H. Sargent, as Judge of the Law and Equity Court of Franklin County, to require him to vacate an order entered in a case wherein petitioner was plaintiff and Joe F. Dillard was defendant. Writ denied.

Stell & Quillin, of Russellville, for petitioner.

Williams & Chenault, of Russellville, opposed.

THOMAS, J.

The petition is for mandamus to the judge of the law and equity court of Franklin county, to vacate an order made on motion as to assessment of damages by the court after default when a jury was demanded.

The provisions of section 7881, Code of 1923, are specific, in that either party may have the damages assessed by a jury. The statute merely declares the rule established by this court concerning the right to a jury when demanded, and the same may not be waived without the consent of the adverse party. Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Ex parte Florida Nursery & Trading Co., 201 Ala. 97, 77 So. 391; Hartford Fire Ins. Co. v. Bannister, 201 Ala. 681, 79 So. 253; Liverpool, etc., Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765.

The judgment by default against defendant was interlocutory until there was a proper assessment of the damages by a jury on execution of writ of inquiry. The 30-day statute has application to a valid judgment. Code 1923,§ 6670. The court did not lose control over the judgment by default to restore the case to the docket for the execution of the writ of inquiry and a proper assessment of the damages by a jury as demanded by the plaintiff. Moreover, there was no motion made or application by petitioner to the court to set aside the order complained of. Ex parte Edwards, 123 Ala. 102, 26 So. 643; Hill v. Tarver, 130 Ala. 592, 30 So. 499; Moseley v. Collins, 133 Ala. 326, 32 So. 131.

The writ is denied.

ANDERSON, C.J., and SOMERVILLE and BOULDIN, JJ., concur.

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18 cases
  • Gulf Electric Co. v. Fried
    • United States
    • Alabama Supreme Court
    • 6 Diciembre 1928
    ... ... demurrer, while in the other the ruling may not be reviewed ... until there has been a final judgment ... In the ... case of Ex parte Highland Ave. & Belt R. Co., 105 Ala. 221, ... 17 So. 182, in considering the 30-day statute as to final ... judgments and decrees rendered, the ... Highland Ave. & Belt R. Co., supra, are Morris v ... Corona Coal Co., 215 Ala. 47, 109 So. 278; Ex parte Bozeman, ... 213 Ala. 223, 104 So. 402; Ex parte Brickell, Judge, 204 Ala ... 441, 86 So. 1; Lewis v. Martin, 210 Ala. 401, 411, ... 412, 98 So. 635; ... ...
  • Ex parte U.S. Shipping Bd. Emergency Fleet Corp.
    • United States
    • Alabama Supreme Court
    • 24 Junio 1926
    ... ... judgment for recovery of a fixed sum, is the final judgment ... Before the final judgment is entered, while the court retains ... control over it, or after it is vacated, the court also ... retains control over the interlocutory judgment. Ex parte ... Bozeman, 213 Ala. 223, 104 So. 402; Ex parte Overton, 174 ... Ala. 256, 57 So. 434; Hendley v. Chabert, 189 Ala ... 258, 65 So. 993 ... The ... original motion filed within 30 days was rested upon the ... ground that interrogatories had been filed to plaintiff, ... under the statute, which ... ...
  • Morris v. Corona Coal Co.
    • United States
    • Alabama Supreme Court
    • 8 Abril 1926
    ... ... 401, ... 98 So. 635; Mt. Vernon Woodbury Mills v. Judge, 200 ... Ala. 168, 75 So. 916; Shipp v. Shelton, 193 Ala ... 658, 69 So. 102; Ex parte Schoel, 205 Ala. 248, 87 So. 801; ... Ex parte Margart, 207 Ala. 604, 93 So. 505; Southern Ry ... Co. v. Griffith, 177 Ala. 364, 58 So. 425; Ex ... though the 30 days from rendition of a valid judgment or ... decree had not expired. See Ex parte Bozeman, 213 Ala. 223, ... 104 So. 402; Ex parte Brickell, Judge, 204 Ala. 441, 86 So ... 1; McCord v. Rumsey, 19 Ala.App. 62, 95 So. 268; ... Monroe ... ...
  • Ex parte Louisville & N.R. Co.
    • United States
    • Alabama Supreme Court
    • 29 Abril 1926
    ... ... 604, 93 So. 505; ... A.C.L.R. Co. v. Burkett, 207 Ala. 344, 92 So. 456 ... It has been held that it is not a final judgment by default ... on common counts until writ of inquiry was executed which may ... be done after 30 days and at the next term. Ex parte Bozeman, ... 213 Ala. 223, 104 So. 402; Code 1923, § 6670 ... The ... foregoing will suffice to illustrate that the date within ... which the statute will run for appeal and review by ... certiorari must be the filing for enrolling of the formal ... judgment required by the statute ... ...
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