Ex parte Florida Nursery & Trading Co.

• Decision Date: 20 December 1917
• Docket Number: 4 Div. 750
• Citation: 77 So. 391,201 Ala. 97
• Parties: Ex parte FLORIDA NURSERY & TRADING CO. v. WATSON. FLORIDA NURSERY & TRADING CO.
• Court: Alabama Supreme Court

77 So. 391

201 Ala. 97

Ex parte FLORIDA NURSERY & TRADING CO.

FLORIDA NURSERY & TRADING CO. v. WATSON.

4 Div. 750

Supreme Court of Alabama

December 20, 1917

Action by J.A. Watson against the Florida Nursery & Trading Company. From a judgment by default, defendant appealed to the Court of Appeals (75 So. 875), where the judgment was affirmed whereupon he petitions for certiorari. Writ granted, judgment reversed, and cause remanded to the Court of Appeals.

A Whaley, of Andalusia, for appellant.

J.D Bailey, of Florala, for appellee.

MAYFIELD J.

Appellee brought an action on the common counts against the appellant in the circuit court of Covington county, and judgment by default therein was rendered against the defendant; the court, without a jury, proceeding to ascertain the amount of damages, and rendering judgment final for the amount so ascertained.

Appellant, defendant below, applied to the lower court, within time, to supersede the judgment and to grant a new trial. This application being denied, defendant then appealed to the Court of Appeals from the judgment final, but not from the judgment denying its motion for a new trial. The Court of Appeals affirmed the judgment final, and defendant applies to this court for the writ of certiorari to review the judgment of the Court of Appeals.

The Court of Appeals affirmed the judgment on two grounds, as stated in its opinion: The first, that section 3971 of the Code authorizes the court or the clerk to ascertain the amount of the account from the written evidence on file, whether such evidence consists of an itemized account verified as required by the statute, or of written depositions on file, and, for such purpose, authorizes the filing of an itemized verified account at the time the judgment is taken; and that in the absence of a showing to the contrary, the appellate court will presume on appeal that there was such evidence on file to authorize the trial court or the clerk to ascertain the amount which the plaintiff was entitled to recover. We cannot agree with the Court of Appeals in this holding, nor in the construction as to the effect of section 3971 of the Code. If the record proper had affirmatively shown that there was such evidence as the statute prescribes, from which the court or the judge could ascertain the amount which plaintiff was entitled to recover, then the section of the Code in question might apply, and dispense with the necessity of a jury to ascertain the amount; but where such matter is not so shown by the record, the appellate court should not presume, against the record. These matters should be shown by the record before the court is authorized to dispense with a jury in the ascertainment of the amount; otherwise the defendant is entitled to a jury trial to ascertain the amount.

In fact, this court has put an entirely different construction on section 3971 of the Code in the case of Parsons Co. v. West-Steagall Co., 163 Ala. 594, 50 So. 1034. In that case the action was on a sworn itemized account. That case was therefore a stronger one for the application of the rule announced by the Court of Appeals than is this, where there was no documentary evidence as to the amount. In that case it was said:

"We have held that under this statute, in a case wherein it was stated, at the end of the complaint, 'The account is verified by affidavit,' and in which the judgment entry did not state that the statute had been complied with, a judgment by the court without a writ of inquiry was erroneous. Greer & Walker et al. v. Liipfert Scales Co., 156 Ala. 572, 47 So. 307. The only authority for dispensing with the writ of inquiry is section 3971 of the Code of 1907, and we must presume that each of the requirements therein laid down was deemed material by the Legislature, to wit: The plaintiff 'shall file *** an itemized statement of account, verified by the affidavit of a competent witness, made before and certified by an officer having authority under the laws of this state to take and certify affidavits,' unless there are depositions on file that prima facie prove the correctness of the account. It will be noticed that neither in the statement at the end of the account nor in the judgment entry is there any intimation of a compliance with that part of the statute which we have italicized."

In the Greer & Walker Case, supra, 156 Ala. 575, 47 So. 307, it is said:

"This suit was on an open account; and although it is stated at the end of the complaint that 'the account

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