Ex parte Doak

• Decision Date: 18 June 1914
• Docket Number: 658
• Citation: 66 So. 64,188 Ala. 406
• Parties: Ex parte DOAK.
• Court: Alabama Supreme Court

66 So. 64

188 Ala. 406

Ex parte DOAK.

No. 658

Supreme Court of Alabama

June 18, 1914

Rehearing Denied July 2, 1914

Original petition by John Doak for a writ of mandamus. Writ denied.

The affidavit filed with the motion of the city of Birmingham to set aside the judgment by default is as follows:

Personally appeared before me, clerk of the circuit court in and for said state and county, M.M. Ullman, who being duly sworn deposes and says that he is the attorney of record for the city of Birmingham, in the above-entitled cause. Affiant further says that he has caused a full investigation to be made of the claim of John Doak against the city of Birmingham, and, from the examination of said case made by affiant, affiant is of the opinion that the city of Birmingham has a meritorious defense and is in no manner liable to plaintiff in the above-entitled cause.

Also the affidavit of R.E. Howard, deputy sheriff, who affirms that the summons and complaint in this case and in others was handed him to be served, and that he went to the city hall and left the papers, the summons and complaint, with Mr. H.S Ryall, but at that time affiant did not see Culpepper Exum and did not serve such paper on Culpepper Exum, and did not leave a copy of said summons and complaint with said Culpepper Exum, but that he wrote the return as upon Culpepper Exum as it now appears because of the fact that it was usual and customary to leave papers of this kind with Mr Ryall, and make the return as though personally served. Also, affidavit of Culpepper Exum, stating in effect that he had never seen or heard of the summons of complaint in this case, and that he had informed the city attorney that no such summons and complaint had been served on him. Also, affidavit of Horace C. Wilkinson stating in effect that Ullman had requested him to permit the judgment to be set aside by consent, that he had declined, and that Ullman stated that the only excuse he had was that he had dictated demurrers to his stenographer, but had left town the next day, supposing that she had filed them, but she had not; and the reply affidavit of Ullman.

Horace C. Wilkinson, of Birmingham, for appellant.

Romaine Boyd and M.M. Ullman, both of Birmingham, for appellee.

McCLELLAN J.

Application for writ of mandamus to require the vacation of an order or judgment, entered in the circuit court of Jefferson county in the cause of John Doak (petitioner) against the city of Birmingham et al., setting aside a previously entered judgment by default, with writ of inquiry executed against the city of Birmingham.

Doak's action was instituted March 4, 1913; and the summons to the city of Birmingham was returned executed March 8, 1913, by service on Culpepper Exum, commissioner of the municipality. On April 28, 1913, judgment by default was entered against the city on plaintiff's motion. On May 7, 1913, the city, through its counsel, filed its motion to have the judgment by default set aside. On May 10, 1913, the motion was heard and arguments were made by counsel for the respective parties, and on that day it was "ordered, decreed, and adjudged by the court that said motion be, and the same is hereby taken under advisement by the court, upon briefs to be submitted by the respective parties on or before May 15, 1913." On June 6, 1913, the court granted the motion to set aside the judgment by default, and thereupon pronounced a formal judgment setting aside the judgment by default, imposing terms upon the city not important to be stated at this time.

The Practice Act governing proceedings in the circuit court of Jefferson county, approved February 28, 1889 (Acts 1888-89, p. 797 et seq.), contains these presently pertinent provisions:

And in all cases,

whether commenced by summons and complaint, attachment, or otherwise, any defendant failing for more than thirty days after service has been perfected upon him to appear and demur or plead, shall be held to be in default, and, at any time thereafter, judgment by default, on motion of the plaintiff, may be rendered against him; provided, however, that the court may, for good cause shown, allow such judgment so obtained by default to be set aside, and demurrer or pleas to be filed, on such terms as the court may think just; but no application to set aside such judgment, unless it be for some reversible error committed in the rendition thereof, shall be entertained by the court, unless accompanied by an affidavit made by the defendant or his agent or attorney to the effect that, in the belief of the affiant, the defendant has a lawful defense to such suit. *** That final judgments rendered in said court shall, after expiration of thirty days from their rendition, be taken and deemed as completely beyond the control of the court, as if the term of said court at which said judgments are rendered had ended at the end of said thirty days; provided however, that nothing herein contained shall prevent parties from applying for new trials or rehearings, *** when so made, or shall prevent parties from applying to said court for rehearings under the statute authorizing applications for rehearings in the circuit court, or shall prevent the court from retrying any cause under section 2871 of the Code of Alabama, or shall prevent the court from the exercise of any power or jurisdiction conferred upon the circuit court touching final judgments."

It thus appears that in the matter under review the motion to set aside the judgment by default was made within 30 days after its entry, was taken under advisement by the court within 30 days after the entry of the judgment by default, without at any time the entry of any formal order of continuance, and was favorably ruled upon during term time after the expiration of thirty days from the entry of the judgment by default.

It is insisted for petitioner, as upon the quoted provisions of the Practice Act, that the failure to act upon the motion before the expiration of 30 days from April 28, 1913--the date of the judgment by default--or to order a continuance of the motion before the expiration of that 30-day period, effected to deprive the court of any power to consider the motion. It is established with us that the expiration of the 30-day period stipulated in the Practice Act without action by the court on a motion for new trial or to set aside a judgment by default, or without an effective continuance of such a motion, the power of the court becomes extinct. Ex parte Payne, 130 Ala. 189, 192, 29 So. 622; Hundley v. Yonge, 69 Ala. 89. Such motions are not, like causes, continued by operation of law because not disposed of. Hundley v. Yonge, supra; Payne's Case, supra. So, the real question in this connection is whether the taking under advisement of the motion to set aside the judgment by default within the 30-day period operated a continuance thereof to such time as the court might lawfully act upon it; whether that action by the court preserved the court's power (subsequently to the expiration of the 30-day period) to determine the issue presented by the motion.

The order of the circuit court in taking the motion under advisement, after argument--a process that passed the matter into the breast of the court--was an observance of the common-law practice described in the phrase curia advisari vult (the court wishes to consider the matter). The effect of the formal entry of that order was to continue the motion until the court might, during a lawful sitting, attain a conclusion and pronounce judgment thereupon. Bouvier's Law Dict. pp. 485, 486; Black on Judg. § 180; Black's Law Dict. p. 310; Clark v. Read, 5 N.J.Law, 486; Semple v. Trustees, etc., 8 N.J.Law, 60. Where the order is made...