Ex parte Martin

• Decision Date: 08 April 1913
• Citation: 61 So. 905,180 Ala. 620
• Parties: Ex parte MARTIN et al.
• Court: Alabama Supreme Court

61 So. 905

180 Ala. 620

Ex parte MARTIN et al.

Supreme Court of Alabama

April 8, 1913

Certiorari to Court of Appeals.

Petition by A.L. Martin and others for certiorari to the Court of Appeals. Denied.

Evans &amp Parrish, of Montgomery, for appellants.

George W. Peach and T.M. Patterson, both of Clayton, for appellee.

MAYFIELD J.

This is a petition for certiorari to the Court of Appeals. The action in the trial court was by the town of Clayton against the petitioners as sureties on the bond of the town marshal.

The trial court sustained a demurrer to the complaint, and the town took a nonsuit and appealed to the Court of Appeals. On the appeal there was a reversal and remandment by the Court of Appeals, and the certiorari prayed is to revise that judgment and decision.

It is earnestly insisted that there was no judgment in the trial court which would support an appeal; that the Court of Appeals never acquired any jurisdiction; and, for that reason, that its judgment is absolutely void.

In support of this contention it is urged that section 3017 of the Code does not apply, for the reason that it was not made to appear that "it became necessary for plaintiff to suffer a nonsuit." It is very true that, in order to revise rulings of courts after voluntary nonsuit, this much must be made to appear by the record proper, or by the bill of exceptions, because it is upon this condition only that the statute authorizes the review on appeal. It does not follow, however, that this must be made to appear in the exact language of the statute, or of any of the decisions construing it. The record is sufficient to authorize the revision if it is made reasonably certain thereby that the nonsuit was rendered necessary in consequence of the adverse ruling. This, we think, was done in this case. The action was on a bond, and the trial court sustained a demurrer thereto which went to the whole right of action, not to the mere form, so all that was left for the plaintiff to do was to take the nonsuit or suffer judgment. It chose the former and, we think, correctly.

Section 3017 is not intended to, and does not, confer any additional rights of appeal otherwise than to authorize certain rulings of the court, after a voluntary nonsuit, which would not without the statute, be revisible.

The judgment in question (and in most nonsuits) is final, in such sense as to support an appeal, but for the fact that, without the statute in question or a similar one, appellate courts will not review judgments taken voluntarily or by consent. Such judgments, of course, are not final in the sense of res judicata; yet they are final in the sense used in the statute authorizing appeals from final judgments. This is made certain by Stone, J., in the case of Wood v. Coman, 56 Ala. 283, 287, which was an appeal from a nonsuit. He says: "We think the judgment in this cause must be regarded as final. It was a final disposition of the cause, under section 2759 of the Revised Code. The judgment entry unnecessarily contains the words, 'unless the Supreme Court shall reverse the ruling of this court and set aside said nonsuit.' The nonsuit had put the case out of the court, and after the adjournment of the term the circuit court no longer had jurisdiction of the cause. The added clause seems to have had only the aim--it certainly had only the effect--of anticipating what would be the result if this court should reverse the ruling of the circuit court and set aside the nonsuit. It did not retain the cause in the court below; and any order in that court, made after the adjournment of that term, would have been irregular. The motion to dismiss the appeal is overruled." Consequently there could be no question about the Court of Appeals having acquired jurisdiction of the appeal.

It is next insisted that the decision and judgment of the Court of Appeals is erroneous in reversing the judgment of the trial court and remanding the cause.

The action was in form on the official bond of one Houston alleged to be the marshal of the town of Clayton. The breaches alleged were that as such marshal he collected...