Ex parte Johnson Land Co., Inc.

• Decision Date: 30 March 1990
• Citation: 561 So.2d 506
• Parties: Ex parte JOHNSON LAND COMPANY, INC. (Re Zane BABSTON, as executor of the estate of Francis Babston, deceased v. JOHNSON LAND COMPANY, INC.) 89-376.
• Court: Alabama Supreme Court

Page 506

561 So.2d 506

Ex parte JOHNSON LAND COMPANY, INC. (Re Zane BABSTON, as executor of the estate of Francis Babston, deceased v. JOHNSON LAND COMPANY, INC.)

89-376.

Supreme Court of Alabama.

March 30, 1990.

Howard C. Alexander, Montgomery, for petitioner.

Charles Tom Payne, Montgomery, for respondent.

HORNSBY, Chief Justice.

Johnson Land Company, Inc., the defendant in the court below, petitions this court for a writ of mandamus commanding the trial judge to vacate his order restoring the above referenced case to the trial docket of the Montgomery County Circuit Court.

The facts as gleaned from the pleadings filed by the parties tend to show that the will of Francis Babston was admitted to probate on June 6, 1985. Her son, Zane Babston, was named executor of the estate on October 17, 1985. Francis Babston left a will with a codicil thereto which left all of her property to her sons, Zane and Richard Babston. Included in the estate is a parcel of real estate described as Lot 18, Block Number 38 according to the Plat of Capitol Heights, recorded at Plat Book 2, pages 34-35, in the offices of the Judge of Probate of Montgomery County, Alabama. Title to that parcel of real estate has been called into question by the petitioner herein, Johnson Land Company, Inc. ("Johnson").

It appears that after Zane Babston was named executor of the Babston estate, his brother, Richard Babston, entered into a loan agreement with Johnson whereby Richard received $3,650. Richard then persuaded Zane to co-sign the loan documents, including an installment note for $3,650 Zane Babston, as plaintiff, sought to be relieved of the debt to Johnson and sought a ruling ordering that the Capitol Heights property be dedicated to the payment of estate debts. This action came two and one half years after the estate was probated and the debt was incurred. During this period, it is alleged, the Babstons made no effort to redeem title to the property. Johnson filed a motion to dismiss, alleging that the Babstons had failed to redeem the property within the redemptive period. A hearing on the motion to dismiss was held on November 1, 1988, and the motion was granted on December 27, 1988. Thereafter, on January 17, 1989, Zane Babston filed a motion for rehearing. A hearing was scheduled on Babston's motion for rehearing. According to Johnson, the judge did not enter an order on the motion for rehearing at that time but stated that he would "go over the facts and enter an order at a later date."

and a "Corporate Mortgage" that placed a lien on the above described parcel of real estate in favor of Johnson. The debt thus incurred was not repaid and Johnson brought foreclosure proceedings and took possession of the property, made improvements, and leased the premises. Two and one half years later, on September 19, 1988, Babston brought suit against Johnson, claiming that the mortgage was void because it was entered into during the six-month period in which claims could be filed against the estate. See Code 1975, § 43-2-350.

Johnson claims that the judge never ruled on the motion, and, therefore, that the motion for rehearing was denied by operation of law at the end of 90 days from January 17, 1989, the date the motion was filed. Thus, Johnson says, the circuit court would be without jurisdiction to further act on this matter after April 17, 1989. See Ala.R.Civ.P. 59.1.

Babston claims that the judge orally granted the motion for rehearing and ordered that the case be placed back on the court docket. Babston includes in his brief to this court the affidavit of Hugh R. Evans III, the law clerk for the trial court. Evans states that at the hearing on March 3, 1989, the trial judge stated in open court that "he had not made up his mind" and that he would notify the parties of his decision. Evans further states that the trial judge told him "a few days after the hearing" that he was granting the motion and that he was restoring the case to the docket. Evans claims that to the best of his recollection or remembrance he "informed both attorneys involved in this case of this decision." Johnson claims, however, that some two weeks before the 90-day period expired it contacted the trial judge to ascertain the status of the motion and that it subsequently heard nothing further from the court until a status conference was set by the trial judge on November 3, 1989. Johnson claims that it had contacted the Circuit Clerk "[a]pproximately 210 days after" the motion for rehearing and was informed by the Clerk that the case was closed and that "in fact it was in the closed file." Based upon this information, Johnson negotiated to sell the Capitol Heights property to the tenant it had been leasing to during the interim.

CONTENTIONS

There is some dispute as to whether all claims against the Babston estate were lawfully filed, and as to whether all claims lawfully filed were paid by the estate. However, because this case turns upon a narrow procedural issue, we do not address the issue of these parties' rights under the statute of non-claims, Code 1975, § 43-2-350.

Johnson now petitions this court for a writ of mandamus that would void the trial court's order of November 20, 1989, reinstating the case to the docket. Johnson claims that because the trial judge did not issue any order granting the motion for rehearing within 90 days, the trial court was without jurisdiction on November 20, 1989, to order the case reinstated to the docket. The Babstons claim that the motion was, in fact, granted by the trial court, and that only a "clerical error" prevented a written order granting the motion from being issued. Johnson claims that, even if

we assume that a clerical error occurred in this case, the Babstons were limited to four months in which to correct the error, and that no correction was made within that time. Johnson also states that it suffered prejudice due to a lack of notice, because, it says, it...