Ex parte Cunningham

• Decision Date: 22 January 1924
• Docket Number: 6 Div. 349.
• Citation: 99 So. 834,19 Ala.App. 584
• Parties: EX PARTE CUNNINGHAM.
• Court: Alabama Court of Appeals

99 So. 834

19 Ala.App. 584

EX PARTE CUNNINGHAM.

6 Div. 349.

Court of Appeals of Alabama

January 22, 1924

Rehearing Denied Feb. 19, 1924.

Original petition by E. N. Cunningham for mandamus to Hon. John Denson as judge of the Tenth Judicial Circuit. Mandamus awarded.

Petition for certiorari dismissed by Supreme Court in Ex parte Ewart-Brewer Motor Co., 99 So. 836.

George Frey and W. B. Harrison, both of Birmingham, for petitioner.

Harsh Harsh & Harsh and Haley & Haley, all of Birmingham, for respondent.

SAMFORD J.

The plaintiff in the court below (petitioner here), on September 8, 1922, filed his suit in the circuit court of Jefferson county in assumpsit against Ewart-Brewer Motor Company, a corporation, claiming $1,000 damages for a breach of warranty in the sale of an automobile, and, as a part of the complaint served on the defendant named, noted a demand for a jury trial, as required by Acts 1915, p. 824. On November 17 1922, there appearing no appearance or pleading on the part of defendant, plaintiff, by leave of the court, withdrew demand for a jury trial and also by leave of the court amended the original complaint by striking out "a corporation" and adding "a partnership composed of W. E. Ewart and W. P. Brewer," and by adding the individual partners as parties defendant. Summonses were issued to the partnership and to the individuals and executed and returned November 21, 1922. On December 22, 1922, no appearance or pleading appearing of record, and the defendants being called came not, judgment by default was entered against the partnership and the individual partners. On January 15, 1923, on motion of plaintiff, the court without a jury, proceeded to ascertain the damages and to enter final judgment. There is nothing in the record to show that the defendants, or either of them, waived the jury or consented that the damages might be ascertained by the court. The original summons and complaint contained the demand for the jury trial, and the amended complaint served on these defendants contained no notice that such demand had been withdrawn. These defendants were therefore entitled to rely on the fact, as fixed in the original summons, that whatever damages were to be assessed against them would be by a jury. The ascertainment of the damages by the court was error. Fla. N. & T. Co. v. Watson, 201 Ala. 97, 77 So. 391; W. U. T. Co. v. Laslie, 17 Ala. App. 303, 84 So. 864.

If this error had been brought to the attention of the court within 30 days from the rendition of the final judgment, the trial court would have been justified and would have had the jurisdiction to have set the judgment aside. The defendants had their remedy to correct this error, either by appeal or by proper motion, made within the 30 days allowed by law. After 30 days the court loses all power over its judgments, as completely as if the term of court had expired. McCord v. Rumsey (Ala. App.) 95 So. 268; First National Bank of Lawrenceburg v. Morrow (Ala. App.) 98 So. 34.

The defendants, however, did not file a motion within 30 days, but proceeded by petition under section 5372 of the Code of 1907. On April 18, 1923, defendants gave notice to plaintiffs that, on April 28th, they would call the petition to the attention of Judge D. A. Green, and on April 20th the petition was presented to Judge Green, at which time he made an order setting the same for hearing on April 28th. Section 5372 of the Code of 1907 fixes the time within which a petition for relief may be filed thereunder at four months, and section 5373 provides:

"And the petitioner shall give the adverse party, or his attorney, ten days' notice of the judge before whom, and the time when, and place where, the application will be made."

Under the statute, therefore, the application must be made within four months and cannot be made until the adverse party has had ten days' notice, as required by section 5373. Under the facts here, the petition was not legally filed within four months from the rendition of the default judgment on December 22, 1922. And, as to that judgment, the judge was without power to consider the petition, the same being properly objected to.

The question then rests upon the judgment awarding damages on January 15, 1923, which was within the four months and of which the plaintiff had due notice of the petition as shown by the entries of the judge. Even so, the judgment rendered January 15th, while erroneous, was not the result of surprise, accident, mistake, or fraud, such as to authorize relief under section 5373, supra. The remedy provided under the statute, supra, was designed to give to litigants in courts of law a remedy similar...