Ex parte New Home Sewing Mach. Co., 4 Div. 96.

• Decision Date: 15 June 1939
• Docket Number: 4 Div. 96.
• Citation: 189 So. 874,238 Ala. 159
• Parties: EX PARTE NEW HOME SEWING MACHINE CO. v. BENSON & CO. NEW HOME SEWING MACHINE CO.
• Court: Alabama Supreme Court

189 So. 874

238 Ala. 159

EX PARTE NEW HOME SEWING MACHINE CO.

NEW HOME SEWING MACHINE CO. v. BENSON & CO.

4 Div. 96.

Supreme Court of Alabama

June 15, 1939

Proceeding by the New Home Sewing Machine Company for a writ of mandamus to require Robert S. Reid, as Judge, Circuit Court, Covington County, to set aside and annul a judgment of the court granting defendant a new trial or rehearing in a case entitled the New Home Sewing Machine Company against Benson &amp Co., and restoring the cause to the trial docket of the court. Proceeding transferred from Court of Appeals under Code 1923, § 7326.

Mandamus denied.

J. L Murphy and Allen Cook, both of Andalusia, for petitioner.

Powell Albritton & Albritton, of Andalusia, for respondent.

KNIGHT Justice.

Original petition filed in this Court for writ of mandamus to be directed to, and commanding the Honorable Robert S. Reid, as Judge of the Circuit Court of Covington County, to set aside and annul a judgment of said court, granting the defendant a new trial, or rehearing in the case of The New Home Sewing Machine Company v. Benson & Company, and restoring said cause to the trial docket of said court. The said petition for rehearing was filed under the provisions of Section 9521 of the Code.

The contention of the petitioner for rehearing was that the summons and complaint was not served upon any officer or agent of the defendant corporation, upon whom the statute authorized service might be had, in order to bring the corporation within the jurisdiction of the trial court. The petition also averred that the petitioner had a meritorious defense to the action; that it was prevented by surprise or mistake "without fault on its part or of any of its officers upon whom service of said summons and complaint could have been legally made."

It is averred in the petition that the summons and complaint was returned by the sheriff of Covington County, "Stating that it had been executed on that date (June 29, 1938) by leaving a copy of the written summons and complaint with Worth Gantt, as Secretary for Benson & Company, a corporation." It is further averred that said Gantt was not secretary of said defendant, and that the service upon him as such secretary "was and is totally insufficient as proper service on this petitioner and is therefore a nullity and void."

It is further averred that petitioner was not advised that such suit was pending in said court until after the rendition of said judgment by default nor within thirty days thereafter.

This petition for rehearing was duly presented to the Presiding Judge of said Circuit Court, and who presided upon the trial of said original cause, and it--the petition--was duly set down for hearing on a designated and fixed date, and due and proper notice was given the plaintiff in said judgment as the law directs in such cases. No irregularity in this respect is here complained of by the petitioner for mandamus.

It appears from the petition for mandamus that Judge Reid decided to entertain the petition and set the same down for hearing on a designated day, but whether the judge did, or did not, require the execution of a supersedeas bond, which was jurisdictional, does not appear. We will not assume, in the absence of a proper showing to that effect, that a proper supersedeas bond was not required and given.

On the hearing of the petition for rehearing much evidence was given pro and con by the respective parties. At the conclusion of the hearing, Judge Reid granted the rehearing, set aside the judgment by default, and restored the case to the docket of the circuit court for new trial.

It has been firmly established in this jurisdiction that where the rehearing is granted, and the former judgment is set aside, the proper remedy to review the action of the court is by mandamus. This results for the reason that when the judgment is set aside, and the cause restored to the trial docket, there is no final judgment to support an appeal. Ingram, Probate Judge, v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Ex parte North, 49 Ala. 385; Ex parte O'Neal, 72 Ala. 560; O'Neal v. Kelly, 72 Ala. 559; Chastain v. Armstrong, 85 Ala. 215, 217, 3 So. 788; Seymour v. Farquhar, 95 Ala. 527, 10 So. 650; Brazel v. New South Coal Co., 131 Ala. 416, 30 So. 832.

While a court of equity, or a law court acting under the four months statute--Section 9521--will set aside a judgment rendered without proper service against a party to the suit, yet to secure such relief the aggrieved party must both allege and prove...