Ex parte John F. Byers Mach. Co.

Decision Date18 January 1921
Docket Number6 Div. 823
Citation18 Ala.App. 78,89 So. 88
PartiesEx parte JOHN F. BYERS MACH. CO.
CourtAlabama Court of Appeals

Rehearing Denied April 5, 1921

Petition of the John F. Byers Machine Company for a writ of mandamus to be directed to Hon. C.B. Smith, as judge of the Tenth Judicial Circuit, requiring him to set aside an order granting a new trial and restoring a case to the docket styled "John F. Byers Machine Company v. Newell Contracting Company." Writ denied.

Certiorari denied, 89 So. 89.

London Yancey & Brower, of Birmingham, for appellant.

C.C Nesmith, of Birmingham, for appellee.

SAMFORD, J.

Petitioner on December 23, 1919, filed his suit in the circuit court of Jefferson county declaring on two promissory notes. Within 30 days defendant filed a demurrer to the complaint, as required by law. The cause was set for trial, and on June 24, 1920 the cause being reached for trial and the defendant being called, failed to answer further than by the demurrer already filed, judgment was entered nil dicit, and plaintiff was allowed to prove his damages before the jury. On June 25th motion was made by the defendant to set aside the judgment nil dicit and that the cause be reinstated on the docket. On June 25th motion was made by the defendant to set aside the judgment nil dicit and that the cause be reinstated on the docket. On June 26th this motion was granted. This petition is filed to compel the judge of the circuit court to set aside the order granting the motion.

It is insisted by petitioner that the judge of the circuit court was without jurisdiction to grant this order, because defendant failed to comply with that part of the Practice Act for the county of Jefferson requiring applications to set aside judgments by default, entered in accordance with the provisions of the act, to be accompanied by an affidavit made by the defendant or his attorney to the effect that, in the belief of affiant, the defendant has a lawful defense to such suit. Acts 1888-89, p. 797. The part of the act pertinent to this case is quoted in Ex parte Doak, 188 Ala. 410, 66 So. 64.

The petitioner in this case seeks to enforce the provisions of a statute which curtails the power of the trial court as theretofore existing, and without which the action of the trial court in setting aside the judgment nil dicit would not be revisable. To do this, he must bring himself within the terms of the statute, and, if he fail, ...

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5 cases
  • Shepherd v. Clements
    • United States
    • Alabama Court of Appeals
    • February 17, 1931
    ... ... in section 9502 of the Code 1923. Ex parte State ex rel ... Harle-Haas Co., 19 Ala. App. 400, 97 So. 680; Ex parte Doak, ... 188 Ala. 406, 66 So. 64; Ex parte Byers Machine Co., 18 Ala ... App. 78, 89 So. 88; Ex parte Payne, 130 Ala ... ...
  • Ex parte State ex rel. Harle Haas Co.
    • United States
    • Alabama Court of Appeals
    • July 10, 1923
    ...of the Practice Act, supra, a motion to set aside must be accompanied by an affidavit of merit, as is nominated in the statute. Ex parte Byers Mach. Co., supra; Ex parte supra. But, in giving to the plaintiff this statutory right, we must be careful to see that the rights of the defendant a......
  • Hamilton v. Pruitt
    • United States
    • Alabama Supreme Court
    • May 12, 1921
    ... ... Affirmed ... June 7, 1921, on authority of Ex parte Taunton, In re ... Tallassee Falls Mfg. Co. v. Taunton, 89 So ... ...
  • Cowan v. Pruitt
    • United States
    • Alabama Court of Appeals
    • February 8, 1921
    ... ... and remanded on the authority of the case of Ex parte ... Ruth Cowan v. H.L. Pruitt (Supreme Court) 89 So ... ...
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