Ex parte State ex rel. Atlas Auto Finance Co.

• Decision Date: 02 December 1948
• Docket Number: 7 Div. 979.
• Citation: 38 So.2d 560,251 Ala. 665
• Parties: Ex parte STATE ex rel. ATLAS AUTO FINANCE CO.
• Court: Alabama Supreme Court

38 So.2d 560

251 Ala. 665

Ex parte STATE ex rel. ATLAS AUTO FINANCE CO.

7 Div. 979.

Supreme Court of Alabama

December 2, 1948

Rehearing Denied Feb. 17, 1949.

W T. Starnes, of Pell City, and Harvey Deramus and Josh Mullins, Jr., both of Birmingham, for petitioners.

Robinson & Parris, of Gadsden, for respondent.

LAWSON Justice.

This is an original petition to this court for mandamus to compel the Hon. W. M. Rayburn, as Judge of the Circuit Court of St Clair County, to vacate an order setting aside a judgment rendered in a cause wherein the petitioner here, Atlas Auto Finance Company, a partnership, was plaintiff and Hoyt Crump was the defendant. It is not necessary to consider here the distinction between a judgment by default and a judgment nil dicit. We will hereafter refer to it as a judgment by default.

Mandamus is the appropriate remedy by which this court exercises its supervisory jurisdiction over courts of original jurisdiction in case of abuse of discretion in the denial (Brown v. Brown, 213 Ala. 339, 105 So. 171) or in the granting (Ex parte Haisten, 227 Ala. 183, 149 So. 213) of a motion to vacate a judgment by default or nil dicit.

On March 27, 1947, the Finance Company filed a detinue suit against Crump to recover a truck and damages for its detention. The plaintiff having made affidavit and given bond at the commencement of the suit, as provided by the statute, § 918, Title 7, Code 1940, the clerk of the court made an endorsement on the summons requiring the sheriff to take the property mentioned in the complaint into his possession, unless the defendant gave bond therefor as required by law. The summons and complaint were served on defendant on June 7, 1947. He immediately executed the appropriate bond and thereby retained possession of the truck.

Although a jury trial had not been demanded, the cause was placed on the jury docket and hearing set for Tuesday, December 9, 1947. On that day or on the previous day the cause was transferred to the non-jury docket and was passed by the court to Friday, December 12, 1947.

The defendant not being present in court or by attorney and not having filed demurrer or plea, the trial court on December 12, 1947, rendered judgment by default in favor of the plaintiff and against the defendant. Thereafter, on January 9, 1948, the defendant, Crump, filed a motion to set aside the judgment by default, which is in words and figures as follows:

'Comes now the defendant in the above styled cause and moves the court to vacate, set aside and hold for naught the judgment heretofore entered against the defendant and as grounds for said motion sets down the following separately and severally, to wit:

'(1) For that said judgment is contrary to law.

'(2) For that said judgment is contrary to law and evidence.

'(3) For that said judgment was obtained by the misconduct or fraud of the plaintiff in this: The case was set on the civil jury docket for trial on Tuesday, December 9, 1947. On Monday, December 8, 1947, the case was transferred to the non-jury docket. A non-jury docket was set for trial on Friday, December 12, 1947. On Friday, December 12, 1947, your defendant went to the circuit clerk's office in the courthouse at Pell City, Alabama, and inquired of Hon. J. W. Truitt, Circuit Clerk, about said cause, and was told by Mr. Truitt that the case was continued for the term, whereupon your defendant left the courthouse. Thereafter, on said date of December 12, 1947, the plaintiff prevailed upon the court to enter the present judgment in the absence of defendant and after the defendant had been informed by an official of the court that the cause had been passed for the term. And, although your defendant had a good and legal defense to this suit, he was denied his day in court and prevented from presenting said defense, by the irregular proceedings above stated.'

This motion was continued from time to time. On August 2, 1948, the trial court granted the motion and vacated, annulled, set aside, and held for naught the judgment by default and restored the cause to the docket. To this action the plaintiff excepted.

The foregoing is a summary of the case made by the petition and the exhibits thereto.

The theory of the petition is that the trial court abused its discretion in setting aside the judgment by default because of the lack of diligence exercised by the defendant in the prosecution of his defense, since he entered no appearance prior to the time the judgment was rendered and because of a failure of averment and proof to the effect that the defendant had a good and meritorious defense.

The answer or return of the trial judge to the rule nisi avers that the petition and its exhibits, which include the record of the proceedings below, do not show a full and true picture of everything that transpired. The return of the judge avers that 'the trial Court, (your defendant here) on the day default judgment was entered of record, after strenuous insistence of Hon. W. T. Starnes, Attorney for Plaintiff below (Petitioner here), and after the Clerk of the Court, Hon. J. W. Truitt, informed the Court that said Defendant appeared in his office on the day said case was set for trial on the Jury docket and that he informed Defendant that his case was continued for that term of Court, the Court there informed Plaintiff's Attorney that the default judgment was conditional, and that if Defendant timely moved to set aside the judgment taken against him, because of the Clerk's telling him that his case would not be tried, that same would be set aside.'

In passing upon the petition for mandamus, the return or answer of respondent, unless controverted, is to be taken as true. Ex parte Adams, 216 Ala. 353, 113 So. 313; Ex parte Schoel, 205 Ala. 248, 87 So. 801. In Ex parte Waldrop, 228 Ala. 38, 39, 152 So. 44, 46, it was said: 'When the judge of a court to whom a rule nisi is issued out of this court on a petition for mandamus answers that petition, and it recites the occurrences in open court, not otherwise shown by the record, in his presence, it is taken by this court as presumptively true.'

The petitioner has filed in this court what it terms a 'Replication to Answer.' It is as follows:

'Comes now the relators in the above styled cause and traverse and reply to the return or answer of defendant and file the following separate and several replications thereto, separately and severally:

'(1) Relators join issue on each separate and several denial of the material facts contained in return or answer of defendant, and deny each separate and several allegation of any matter therein contained.'

The petitioner or relator has the right under the statute to join issue on the return. § 1073, Title 7, Code 1940, provides: 'In any such proceeding, the return or answer shall not be conclusive, but the truth or sufficiency thereof may be put in issue and controverted.' This statute changed the common-law rule which was that the return or answer was not traversable. Wilson v. Brown, 241 Ala. 178, 1 So.2d 914.

But the mere joining of issue of fact on the return or answer does not destroy the evidential value of the return. Having joined issue, the burden of controverting by competent legal evidence the facts stated in the return was upon petitioner or relator. Wilson v. Brown, supra. This petitioner attempted to do in a measure by introducing in evidence here an affidavit of Hon. W. T. Starnes, the attorney who represented it in the court below. As here pertinent, said affidavit is as follows:

'After suit was entered and service of process was obtained the cause was set down for a hearing by the Clerk of the Circuit Court of St. Clair County on December 9, 1947. On or about to wit, December 9, 1947, I saw the defendant, Hoyt Crump, and told him the case would be continued until Friday, December 12, 1947. The defendant Crump had not filed any pleading or appearance in the detinue suit at that time and has filed no appearance nor pleading at the time of making this affidavit, in so far as I am able to learn.

'I understand that on December 12, 1947, the Clerk of said Circuit Court informed the defendant Crump that the case would be continued for the term. On said date when the case was called by Hon. W. M. Rayburn, Judge of said Circuit Court, I made due and legal request for default judgment and it is my recollection that Judge Rayburn said at the time of taking said judgment that if the defendant came back in within the time allowed by law with a showing of good cause or a good defense in law, or words to that effect, the default judgment would be set aside.' (Emphasis supplied)

As we understand the averments of this affidavit, it does not actually controvert the statements made by Judge Rayburn in his return as to what transpired at the time the default judgment was entered, but it does add a qualification thereto to the effect that Judge Rayburn would not set the default judgment aside upon request of the defendant, Crump, except upon 'a showing of good cause or a good defense in law.' But the affidavit of Mr. Starnes does not positively aver that the Judge made such a statement. It merely avers that such was affiant's recollection.

In view of the positive averments made in the trial judge's return, which as before indicated are to the effect that there was no qualification or limitation placed upon his statement made at the time default judgment was entered, that he would set it aside upon request of defendant, we do not think that the affidavit introduced by the relator can be said to be evidence sufficient to overturn the trial judge's statements as to what occurred at the time the judgment was entered.

The motion to set aside the default judgment was filed...