Ex parte Green

• Citation: 221 Ala. 298,129 So. 72
• Decision Date: 22 May 1930
• Docket Number: 6 Div. 618.
• Parties: EX PARTE GREEN, SUPERINTENDENT OF BANKS.
• Court: Supreme Court of Alabama

129 So. 72

221 Ala. 298

EX PARTE GREEN, SUPERINTENDENT OF BANKS.

6 Div. 618.

Supreme Court of Alabama

May 22, 1930

Petition of D. F. Green, as Superintendent of Banks, for mandamus to Hon. Roger Snyder, as Judge of the Tenth Judicial Circuit.

Writ awarded.

See also 129 So. 69, 92, 465.

H. L Anderton, of Birmingham, for petitioner.

Horace C. Wilkinson and Wm. S. Pritchard, both of Birmingham, for respondent.

FOSTER J.

This is a petition addressed to this court for mandamus to Hon. Roger Snyder, a circuit judge of Jefferson county, to require him to grant certain motions to expunge certain allege spurious matters from interlocutory orders made by him in a pending suit in equity. The motions had been overruled by him. The orders contain recitals of occurrences which it is claimed were material as affecting the question of whether petitioner's said motions should have been stricken in one instance, or should have been granted in others, and petitioner claims that such recitals do not truly and correctly interpret those occurrences. The respondent to the petition in this court challenges its virtue as a proper method of accomplishing its purpose. This is done by demurrer to the petition. To that challenge the answer is that in many cases mandamus is merely a method of review. A statement of its use as such is thus expressed: "If an order or judgment or decree is made or rendered, which is not the subject of revision by appeal or other revisory remedy, and yet is erroneous, working injury to the party complaining and there being no other legal remedy, adequate to the correction of the error and the prevention of the injury mandamus will be awarded." Ex parte Tower Mfg Co., 103 Ala. 418, 15 So. 836, 837; Ex parte Fechheimer, 103 Ala. 154, 15 So. 647: Bridgeport Ice Co. v. Bridgeport Land Co., 104 Ala. 276, 16 So. 93; Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex pate L. & N. R. Co., 211 Ala. 531, 100 So. 843. It is only one form of review available as stated above, under the constitutional authority of the Supreme Court, to have "a general superintendence and control of inferior jurisdictions." Section 140, Const.; Ex parte U.S. Shipping Board, 215 Ala. 321, 110 So. 469; Brown v. Brown, 213 Ala. 339, 105 So. 171; Ex parte Watters, 180 Ala. 523, 61 So. 904; Ex parte Gay, 213 Ala. 5, 104 So. 898; Trognitz v. Touart, 219 Ala. 404, 122 So. 620.

This petition shows all the elements of a proper use of the writ for review of that nature, and we think it is the appropriate method of reviewing the order of the court denying petitioner's motions to strike such alleged spurious matters from its decrees.

The record shows that the motions were made and acted upon within thirty days after entry of the orders in which the objectionable features appear, and that they were interlocutory in nature. So that the court had full power and control over them, and the motions to expunge are not controlled by the rule that the court, after an adjournment of the term, or the expiration of thirty days, cannot alter or amend a judgment, or decree "except for a clerical error or omission on evidence shown by the record." Campbell v. Beyers, 189 Ala. 307, 66 So. 651; Briggs v. T. C., I. & Ry. Co., 175 Ala. 130, 57 So. 882. It is well known, both that the court retains control of its judgments even though final for thirty days (unless it has adjourned for the term in the meantime), so that during such period it may add to or strike from them any matter when proper (Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; section 6636, Code), and that interlocutory judgments and decrees remain in fieri until final judgment is entered, and in the meantime the court may open, amend, or vacate them, as the facts justify (Pinkard v. Allen, 75 Ala. 73; Hurt v. Hurt, 157 Ala. 126, 137, 47 So. 260; Chancery Rule 82; 34 Corpus Juris, 216).

Upon the hearing of a motion based on facts not appearing of record, the movant may sustain his allegations by affidavits, or oral testimony. Sims on Chancery Practice, § 685; 42 Corpus Juris, 345, 347; Brown v. Brown, supra.

A verified petition and verified answer are treated as evidence, because they are affidavits. Salmon v. Salmon, 180 Ala. 252, 60 So. 837. On such hearing the burden was, of course, on the movant to sustain his contention on the issue of fact that the matter should have been stricken.

Petitioner as superintendent of banks was a party respondent in the suit of J. E. Smith et al., as creditors of the Bank of Ensley, to subject certain equitable assets of Sam C. King, former vice president of the bank, to a debt claimed to be due by him to the bank. On the filing of the bill, the court appointed a receiver of the assets of Sam C. King. Petitioner, as a party to the suit, made a motion to vacate the appointment of the receiver. Complainants moved to strike the motion of petitioner to vacate. There was a hearing of the petition to strike, and the court made an order striking petitioner's motion to vacate. The order striking the motion contains the following statement in respect to a remark by petitioner in open court; "To the effect that he [petitioner] desires to cooperate in the proceedings and did not desire the receivership vacated and that he would join in said proceedings and cooperate in the prosecution of the same." The order recites that petitioner made such statement on the hearing, and that on account of it, his motion to vacate the appointment of the receiver should be and was stricken. In support of petitioner's motion to expunge the words above quoted from said order, he...