Ex parte Crumpton

• Decision Date: 15 June 1926
• Docket Number: 6 Div. 43
• Citation: 109 So. 184,21 Ala.App. 446
• Parties: Ex parte CRUMPTON.
• Court: Alabama Court of Appeals

109 So. 184

21 Ala.App. 446

Ex parte CRUMPTON.

6 Div. 43

Court of Appeals of Alabama

June 15, 1926

Original petition of Lizzie Crumpton for mandamus to Roger Snyder, as Judge of the Circuit Court of Jefferson County. Writ denied.

H.M Abercrombie, of Birmingham, for petitioner.

James M. Kidd and J.E. Brown, both of Birmingham, for respondent.

BRICKEN P.J.

This is a petition for mandamus, filed in this court to compel the Honorable Roger Snyder, as judge of the Tenth judicial circuit, to vacate an order, made by said judge, setting aside a certain judgment by default, with writ of inquiry against defendant, in the cause of Lizzie Crumpton Plaintiff, v. Miles Bradford, defendant, in the circuit court of Jefferson County.

On the 12th day of November, 1924, Lizzie Crumpton, plaintiff brought her suit in the circuit court against Miles Bradford defendant, to recover damages alleged to have been sustained by her from the negligent operation of an automobile by defendant. At the time the suit was brought there were two separate and distinct persons, each over the age of 21 years, each named Miles Bradford, and each residing at the same address in the city of Birmingham. Miles Bradford, Sr., is the father of Miles Bradford, Jr. The summons and complaint was executed on the 15th day of November, 1924, by the service of a copy thereof upon Miles Bradford, Sr. The sheriff's return upon the summons and complaint is as follows:

"Executed this the 15th day of Nov. 24, by leaving a copy of the within with Miles Bradford. T.J. Shirley, Sheriff, by C.L. Hamilton, D.S."

It is alleged in the application for mandamus that in said cause a judgment by defendant was recovered against Miles Bradford on the 21st day of May, 1925, for the sum of $500 in said court and then presided over by the Honorable Roger Snyder, judge of said court. The judgment was in favor of Lizzie Crumpton, plaintiff, and against Miles Bradford, defendant.

On the 4th day of June, 1925, and within 30 days from the rendition of said judgment, Miles Bradford, Sr., the person who was served with the summons and complaint, filed his motion in said court to set aside said judgment by default. The motion in its entirety is verified by the affidavit of Miles Bradford, Sr., upon whom the summons and complaint was served. The motion alleges, among other things, that movant was not the person sued, or intended to be sued; that the complaint was against another person, to wit, Miles Bradford, Jr., movant's son; that the officer serving said summons and complaint was advised that movant was not the person sued, and that he was not guilty of the matters alleged in the complaint; that movant had a good defense to said suit, which he could establish upon another trial.

The motion in question being filed within 30 days from the date when the judgment by default was rendered, comes within the provisions of the Jefferson County Practice Act (Acts 1888-89, p. 797 et seq.) and also of section 6670 of the Code of Alabama 1923.

The Jefferson County Practice Act, supra, provides, that the court may, for good cause shown, allow a judgment to be set aside, and demurrer or pleas be filed, on such terms as the court may think just, provided the defendant, his agent or attorney, files, with the application to set aside the judgment by default, an affidavit that the defendant has a good defense to the suit or rather a lawful defense to the suit.

The application for mandamus was filed in this court on the 21st day of April 1926, and was thereafter amended by the petitioner on the 11th day of May, 1926, on which later date the respondent judge filed his answer in this court. This answer recites, that upon the hearing of the motion to set aside the judgment by default he was convinced from the testimony offered before him that Miles Bradford, Sr., against whom the judgment by default had been obtained, knew nothing of the injury received by the plaintiff and was not responsible therefor. These facts, if true, constituted a lawful defense to the suit in question. Respondent judge specifically states in his answer as follows:

"Believing our courts to be institutions of justice and not injustice, I felt it my duty as judge of the court to set aside the judgment obtained by Attorney H.M. Abercrombie by default for his client Lizzie Crumpton v. Miles Bradford, Sr., when Miles Bradford, Jr., was the party against whom the proceedings were originally sought to be had, and, as Miles Bradford, Sr., was an innocent party, I could not conscientiously let the judgment stand against him."

The answer of respondent is not controverted, or traversed, by any pleading before us. The statements contained in his answer must be taken as true. Ex parte Schoel, 205 Ala. 248, 87 So. 801.

In addition to the Jefferson County Practice Act, supra, and section 6670 of the Code 1923, we have another statute under which an application to set aside a judgment by default may be filed. Section 9521 of the Code 1925 (the 4-month statute) provides the conditions under which an application for a rehearing may be presented to the trial court. A marked distinction governs the practice and procedure relating to motions, or applications, filed under the 30-day statute, and those filed under the 4-month statute. In the case of Eminent Household, etc., v. Lockerd, 202 Ala. 330, 80 So. 412, cited and approved in the case of Gray v. Handy, 204 Ala. 559, 86 So. 548, speaking in regard to section 9521 of the Code 1923, the Supreme Court said that statute was:

" 'In the nature of a declaration of facts upon which the petitioner predicates his claim for relief,' rather than an exercise of the plenary power of the court to set aside its own judgments for proper cause shown within 30 days from the rendition thereof or on motion as provided by statute (Acts 1915, p. 708, § 3) that on a motion under Code, § 5372, it is the duty of the court 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.' "

Section 7858 of the Code 1923 has no application to the case at bar. That section was construed in the case of Hershey Chocolate Co. v. Yates et al., 196 Ala. 657, 72 So. 260, and it is there shown that the purpose of this section is to prevent the arrest or reversal of a judgment for mere defects in the form of the preliminary pleading and to require the testing of said pleading by special demurrer or other special pleading.

It has been heretofore expressed that the motion to set aside the judgment by default in the instant case was filed within 30 days after entry of said judgment by default and while the court had plenary power over said judgment. Under the provisions of the Jefferson County Practice Act, as well as under the...