Ex parte Davis

• Decision Date: 08 February 1923
• Docket Number: 4 Div. 38.
• Parties: Ex parte DAVIS et al.
• Court: Alabama Supreme Court

95 So. 363

209 Ala. 126

Ex parte DAVIS et al.

4 Div. 38.

Supreme Court of Alabama

February 8, 1923

Application by J. W. Davis and others for writ of mandamus to Hon. A. B Foster, as Judge of the Twelfth Judicial Circuit. Writ denied.

W. W Sanders, of Elba, for petitioner.

J. A Carnley, of Elba, for respondent.

McCLELLAN J.

Original petition by Davis and others to this court for writ of mandamus to require the judge of the Twelfth circuit to vacate and annul an order or ruling of the circuit court denying the motion of present petitioners to strike a pleading filed on March 1, 1921, and later amended, by Mrs. Pearlie Davis Lee, wherein Mrs. Lee sought to have vacated a decree entered in the cause of Davis and others against Mrs. Lee and her minor child in which the relief sought was the setting apart of homestead exemption to Mrs. Lee and the minor child and the partition among these complainants of the excess of real estate of which Mrs. Lee's former husband, C. Davis, was seized and possessed at the time of his decease.

The report of the appeal contains the substance of paragraphs 2 3, and 4 of the pleading filed on March 1, 1921, by Mrs. Pearlie Davis Lee. So far as the present record advises, this pleading was not called to the attention of the judge or court until March 5, 1921, more than 30 days after the decree assailed was rendered. The decree Mrs. Lee sought to have set aside was rendered on February 1, 1921. It does not appear from the record of that cause, reproduced in the present proceeding, that the decree assailed has been fully executed, or that that cause is not still pending in the same court whereto Mrs. Lee addressed her pleading through which she seeks the vacation of the decree therein. Independent of the correctness of other considerations recited in the court's opinion, the court's declination to sustain the motion to strike Mrs. Lee's pleading, assailing the decree, may be justified by recourse to that feature of the court's conclusion wherein it was declared that Mrs. Lee's "petition should be treated as an original bill, and procedure had thereunder as such." Referring the action of the court to that theory, it is evident that Mrs. Lee's pleading was regarded, as it might well have been, as a bill in the nature of an original bill of review. Evans v. Wilhite, 167 Ala. 587, 52 South 845. Whether the view thus manifested by the court or the exercise of discretion...