Ex parte Haynes
| Decision Date | 10 May 1904 |
| Citation | 37 So. 286,140 Ala. 196 |
| Parties | EX PARTE HAYNES. |
| Court | Alabama Supreme Court |
Petition for mandamus by J. T. Haynes to compel the Hon. B. C. Jones judge of the Bessemer city court, to vacate an order setting aside a default judgment. Writ denied.
Pinkney Scott and S. P. Cain, for petitioner.
James Weatherly, for respondent.
Petition for writ of mandamus to compel the vacating of an order setting aside a judgment by default entered by the respondent as judge of the city court of Bessemer. It appears by the record that the petitioner brought his action by summons and complaint against the Birmingham Mining & Contracting Company, a copy of which was served on an agent of defendant on the 20th day of August, 1903. Nine days thereafter the defendant, by attorney, appeared and filed a demurrer to the complaint. On the 9th day of November following, the judgment by default was rendered, which was set aside on the 14th day of the same month on the application of the defendant. The application to vacate the judgment by default was not accompanied by an affidavit 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 the action, and this want of the accompanying affidavit with the application is made the basis for the contention that the court was without jurisdiction to set aside the judgment, and therefore entitles the petitioner to the writ of mandamus prayed for.
Section 8 of the act establishing this court (Acts 1900-01, p. 1859) provides: "That in all cases commenced in said court by summons and complaint, the defendant shall be required to appear and demur or plead to the complaint within thirty days after the service of the summons and complaint upon him whether said service be made in term time or vacation; * * * and in all cases at law, 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 in default and 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 plea to it be filed on such terms as the court may think just; but no application to set aside such judgment, unless it be for some...
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Skelton v. Weaver
...as one who pleads the general issue, and that it is error to render a judgment by default or nil dicit against him. Ex parte Haynes, 140 Ala. 196, 37 So. 286 (criticized in Brandon v. Leeds State Bank, 'In Brandon v. Leeds State Bank, supra, as in some others, the distinction between an aff......
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Liverpool & London & Globe Ins. Co. v. Lowe
... ... 871; Florence, etc., Co. v ... Field, 104 Ala. 471, 476, 16 So. 538; Buck Creek L ... Co. v. Nelson, 188 Ala. 243, 66 So. 476; Ex parte Mrs ... A. M. Margart, 93 So. 505. The time of taking the instant ... appeal was within six months from November 1, 1920, the date ... to which ... a default judgment cannot be rendered where the defendant has ... appeared and demurred, Acts 1915, p. 825; Ex parte Haynes, ... 140 Ala. 196, 37 So. 286. We do not find in these decisions ... and statute anything that would lead to a reversal. In ... Garnett v. Scott ... ...
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United States Building & Loan Association v. Soule
... ... the error cannot be corrected by common-law ... certiorari. Appeal is the proper remedy for this, as ... decided in Ex parte Haynes, 140 Ala. 196, 198, 37 ... So. 286 ... " ... To the ... same effect, where pleadings were on file, see Gray v ... Hall, 203 ... ...
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Lokey v. Ward
...as one who pleads the general issue, and that it is error to render a judgment by default or nil dicit against him. Ex parte Haynes, 140 Ala. 196, 37 So. 286 (criticized in Brandon v. Leeds State Bank, In Brandon v. Leeds State Bank, supra, as in some others, the distinction between an affi......