Ex parte Jones

• Decision Date: 18 January 1945
• Docket Number: 1 Div. 226.
• Parties: Ex parte JONES.
• Court: Alabama Supreme Court

20 So.2d 859

246 Ala. 433

Ex parte JONES.

1 Div. 226.

Supreme Court of Alabama

January 18, 1945

Rehearing Denied March 1, 1945.

Howard Scott, of Chatom, and Wm. G. Caffey, of Mobile, for petitioner.

Granade & Granade, of Chatom, for respondent.

STAKELY Justice.

This is an original petition to this court for mandamus to compel Joe M. Pelham, Jr., as Judge of the First Judicial Circuit, to vacate a decree setting aside a decree pro confesso in the equity court. The theory of the petition is that the court abused its discretion in setting aside the decree pro confesso because of lack of diligence on the part of the respondent in moving to set aside the decree pro confesso and because of want of meritorious defense, and further abused its discretion in the light of Equity Rule 34, Code 1940, tit. 7 Appendix, which provides: 'If the testimony has been published, the decree pro confesso must not be set aside and permission to file an answer be given unless in the judgment of the court justice so requires.' Upon issuance of the rule nisi, judge Pelham filed a demurrer to the petition and without waiving the demurrer, filed answer. The cause is submitted here on petition, demurrer and answer.

On August 10, 1941, a bill in equity was filed in the Circuit Court of Washington County by Robert L. Jones for himself and others against L. Q. Gunter, alias Lon Q. Gunter. Demurrer was interposed and overruled by the court. Appeal was taken from this decree to the Supreme Court of Alabama, which sustained the decree of the lower court. Gunter v Jones, 244 Ala. 251, 13 So.2d 51. The bill seeks to redeem from the respondent, purchaser at mortgage foreclosure sale, an undivided one-half interest in certain lands and to have the court decree that respondent holds title to the other undivided one-half interest in the lands as trustee for complainant and others and to fix the amount due respondent for acquiring such other undivided one-half interest for complainant and others.

The following situation is shown in substance by the allegations of the bill: A. V. Jones executed a mortgage to Citronelle State Bank covering certain real estate in the town of Chatom, Washington County, Alabama. The mortgage contained the provision that the mortgagor guaranteed the title to the property to be in him and that he would warrant and defend the title to purchaser under the power of sale contained in the mortgage. However, the mortgagor, A. V. Jones, at the time of the execution of the mortgage, owned only an undivided one-half interest in the property and a life estate in the other undivided one-half interest, with the remainder in Margaret Ramey, his mother-in-law. The reason for the execution of the mortgage was that A. V. Jones owed the respondent, Lon Q. Gunter, or his principal, Wofford Oil Company, the sum of $800 for gasoline sold to him, and Gunter arranged for him to borrow the sum of $1,000 through execution of the aforesaid mortgage, with which to pay the debt. To enable Jones to obtain the mortgage loan, Gunter endorsed the note secured by the mortgage. A. V. Jones died and the mortgage became in default. Thereupon an investigation of the title to the property described in the mortgage was made and it was then learned for the first time that A. V. Jones did not own the entire interest in the property. Thereupon Gunter bought in the outstanding undivided one-half interest from Margaret Ramey for the benefit of the heirs of A. V. Jones. She executed to him a deed for her interest in the property. The Citronelle State Bank foreclosed the mortgage and Lon Q. Gunter became the purchaser at the sale.

In the foregoing decree overruling the demurrer, the Circuit Court of Washington County allowed the respondent thirty days for answer. This court in its foregoing decision made no reference to the time for answer. This court affirmed the decree of the Circuit Court of Washington County on April 15, 1943, and the certificate of affirmance was filed in the Circuit Court of Washington County on April 17, 1943. The lower court made no further order with reference to answer. On May 19, 1943, complainant applied for and obtained a decree pro confesso from the Register. (This is the decree pro confesso involved in the present petition.) On May 21, 1943, complainant took testimony to establish the amount to be paid by him to redeem the undivided one-half interest in the land from the mortgage sale and the amount to obtain a reconveyance of the other undivided one-half interest in the land. On May 31, 1943, complainant obtained an order publishing the testimony and an order of submission with note of testimony.

On June 3, 1943, without leave of the court, respondent filed an answer to the bill of complaint. On September 20, 1943, respondent filed a motion to set aside the decree pro confesso. As stated, the court granted the motion. The answer of Judge Joe Pelham, Jr., to the petition for mandamus is not controverted. Facts well pleaded in the answer will be taken as conclusive. Jones v. City of Opelika, 242 Ala. 24, 4 So.2d 509; Ex parte State ex rel. Brittain et al., 237 Ala. 164, 186 So. 148.

The answer of Judge Pelham shows that the respondent that neither notice nor actual knowledge of the application by complainant for the decree pro confesso or actual knowledge of the granting thereof until September 15, 1943, when he immediately filed his motion to set aside the decree pro confesso. The answer further alleges that under the respondent's answer filed June 3, 1943, the respondent has a meritorious defense. Respondent's answer is attached as an exhibit to the petition for mandamus. We consider that we can look to respondent's answer to see if this be true.

The testimony in the case had been published before the court set aside the decree pro confesso. In speaking of the effect of Equity Rule 34, where this is the situation, this court in the case of Koonce v. Arnold, 244 Ala. 513, 14 So.2d 512, said:

'Moreover, under Chancery Rule 34, the court may, in its sound discretion, set aside a decree pro confesso after the testimony has been published where justice so requires. In any event, the trial court is vested with a sound discretion in setting aside decrees pro confesso, and there was no abuse of that discretion in the instant case.'

It may be generally said that the power to set aside a decree pro confesso is one which rests in the sound discretion of the court and the exercise of that power by the court will not be revised on mandamus or otherwise except for abuse of its discretion. Drennen Motor Co. v. Patrick, 225 Ala. 36, 141 So. 681; Gibson v. Farmers' Bank of Luverne, 218 Ala. 554, 119 So. 664; Ex parte Gay, 213 Ala. 5, 104 So. 898; Brown v. Brown, 213 Ala. 339, 105 So. 171.

Accordingly it becomes necessary to see what in principle constitutes abuse of discretion. In Clayton v. State, 244 Ala. 10, 13 So.2d 420, 422, this court was dealing with the discretion which the trial court may exercise in the matter of continuance, but what was there said will be regarded as a general statement of principle. This court, speaking through Mr. Chief Justice Gardner, said:

"And while it is not necessary, to constitute abuse, that the court shall act wickedly or with intentional unfairness, it is essential to show that it has committed a clear or palpable error, without the correction of which manifest injustice will be done. Since the court trying the cause is, from personal observation, familiar with all the attendant circumstances, and has the best opportunity of forming a correct opinion upon the case presented, the presumption will be in favor of its action, and in no case will the exercise of this discretion be reviewed where it manifestly appears that justice has been done without sacrificing the rights of defendant. The opinion that the trial court might, in view of all the facts shown, very consistently have granted the continuance will not of itself be sufficient to authorize a reversal."

In the light of the foregoing, should we say that the circuit court abused its discretion in setting aside the decree pro confesso? Should we hold that there was such lack of diligence in filing an answwer and in moving to set aside the decree pro confesso or such...