Ex parte State ex rel. Harle Haas Co.

• Decision Date: 10 July 1923
• Docket Number: 6 Div. 308.
• Citation: 97 So. 680,19 Ala.App. 400
• Parties: EX PARTE STATE EX REL. HARLE HAAS CO.
• Court: Alabama Court of Appeals

97 So. 680

19 Ala.App. 400

EX PARTE STATE EX REL. HARLE HAAS CO.

6 Div. 308.

Court of Appeals of Alabama

July 10, 1923

Rehearing Denied Oct. 16, 1923.

Original petition by the State of Alabama, on the relation of the Harle Haas Company, for mandamus to Hon. Roger Snyder, as Judge of the Circuit Court, Jefferson County. Writ denied.

Thompson & Thompson, of Birmingham, for petitioner.

Coleman Coleman, Spain & Stewart, of Birmingham, for respondent.

SAMFORD, J.

Petitioner as plaintiff, on September 9, 1922, filed his suit in assumpsit, in the circuit court of Jefferson county, against S. A. Merriam, claiming $737.92 on the common counts, and service was had and return made on September 25, 1922. Said cause was set for hearing for February 14, 1923, before Hon Roger Snyder, one of the judges of the Tenth judicial circuit, and on that day, upon motion and application of plaintiff, judgment by default was entered and rendered against defendant for the amount sued for and interest. On February 16, 1922, the defendant, through his attorney, filed a motion in said court to set aside said judgment by default assigning as one of the grounds of the motion:

"This defendant had filed with the clerk of the circuit court of Jefferson county, its demurrers in said cause within thirty days from the date of the service of the summons and complaint on defendant, and this defendant was not in default in said cause."

Of this motion plaintiff had notice. The motion was by proper entries and orders continued to the 3d day of March, 1923. On that day the judge presiding (this respondent) entered an order granting the motion, setting aside the judgment by default and reinstating the case to the trial docket. This petition seeks to compel the respondent to set aside the last-named order.

The Practice Act, governing proceedings in the circuit court of Jefferson county (Acts 1888-89, p. 797) contains these pertinent provisions:

"And in all cases, whether commenced by summons and complaint, attachment, or otherwise, any defendant failing for more than thirty days after service has been perfected upon him to appear and demur or plead, shall be held to be in default, and, at any time thereafter, judgment by default, on motion of the plaintiff, may be rendered against him provided, however, that the court may, for good cause shown, allow such judgment so obtained by default to be set aside, and demurrer or pleas to be filed, on such terms as the court may think just; but no application to set aside such judgment, unless it be for some reversible error committed in the rendition thereof, shall be entertained by the court, unless accompanied by an affidavit made by the defendant or his agent or attorney to the effect that, in the belief of the affiant, the defendant has a lawful defense to such suit. *** That final judgments rendered in said court shall, after expiration of thirty days from their rendition, be taken and deemed as completely beyond the control of the court, as if the term of said court at which said judgments are rendered had ended at the end of said thirty days; provided, however, that nothing herein contained shall prevent parties from applying for new trials or rehearings, *** when so made, or shall prevent parties from applying to said court for rehearing under the statute authorizing applications for rehearings in the circuit court, or shall prevent the court from retrying any cause under section 2871 of the Code of Alabama, or shall prevent the court from the exercise of any power or jurisdiction conferred upon the circuit court touching final judgments."

This part of the act has several times been the subject of construction by the Supreme Court and this court. Ex parte Doak...