Ex parte U.S. Shipping Bd. Emergency Fleet Corp.

• Decision Date: 24 June 1926
• Docket Number: 1 Div. 376
• Citation: 110 So. 469,215 Ala. 321
• Court: Alabama Supreme Court
• Parties: Ex parte UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION. v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION. VIRGINIA BRIDGE & IRON CO.

110 So. 469

215 Ala. 321

Ex parte UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

VIRGINIA BRIDGE & IRON CO. v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

1 Div. 376

Supreme Court of Alabama

June 24, 1926

Rehearing Denied Dec. 9, 1926

Original petition of the United States Shipping Board Emergency Fleet Corporation for mandamus to Hon. Joel W. Goldsby, Judge of the Circuit Court of Mobile County. Writ denied.

Gardner and Bouldin, JJ., dissenting.

Thomas C. McClellan and I.V. McPherson, Sp. Asst. Attys. Gen., of the United States, for petitioner.

Smithe Young & Johnston, of Mobile, for respondent.

BOULDIN J.

This is a mandamus proceeding directed to Hon. Joel W. Goldsby, judge of Mobile circuit court, to vacate a judgment nil dicit rendered in that court, in the case of Virginia Bridge & Iron Company against United States Shipping Board Emergency Fleet Corporation.

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 of a motion to vacate a judgment by default or nil dicit. Brown v Brown, 213 Ala. 339, 105 So. 171; Eminent Household v. Lockerd, 202 Ala. 330, 80 So. 412.

A judgment by default or nil dicit with writ of inquiry to be executed at a later date is interlocutory. The judgment rendered upon execution of the writ of inquiry, the effective judgment for recovery of a fixed sum, is the final judgment. Before the final judgment is entered, while the court retains control over it, or after it is vacated, the court also retains control over the interlocutory judgment. Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Ex parte Overton, 174 Ala. 256, 57 So. 434; Hendley v. Chabert, 189 Ala 258, 65 So. 993.

The original motion filed within 30 days was rested upon the ground that interrogatories had been filed to plaintiff, under the statute, which had not been answered at the time judgment nil dicit was entered, and that defendant was unable to plead without the information sought. In Parker v. Newman, 200 Ala. 103, 75 So. 479, this court declared the general rule that, when the case is regularly reached for trial, it is within the discretion of the court to refuse a continuance because the adverse party has not answered the interrogatories, the statutory period for filing answers not having expired.

Petitioner insists that, the proceeding being in the nature of a bill of discovery, the information called for by interrogatories is a matter of right, and a judgment nil dicit before answer, and before the date when answer is required, is premature and should be set aside. Upon failure to file answers within 60 days, the party in default may be dealt with in either of several ways defined by statute. Code, § 7770. The discretion of the court in the selection of either statutory alternative will not be controlled. Russell v. Bush, 196 Ala. 309, 71 So. 397. But the court is "in duty bound" to protect the party entitled to the benefits of the statute in one of the methods prescribed. Woodman O.W. v. Alford, 206 Ala. 18, 23, 89 So. 528.

The statute, however, carries no provision changing the time for pleading, nor depriving the court of its general discretionary power in the continuance of causes, a power quite essential to the speedy administration of justice. The statute must be so construed as to effectuate its purpose and, at the same time, infringe upon other legal rules no further than necessarily implied to accomplish the ends in view.

Under our practice, a cause may come on for hearing any time after the expiration of 30 days from the date of service of summons and complaint, but 60 days are given to answer interrogatories to the adverse party. When pertinent interrogatories are promptly filed calling for material evidence, accompanied by the required affidavit that the answers will be material testimony for him in the cause, to proceed to trial against the objections of such party, not in default as to pleading, before the answers are filed and before the 60 days for answer have elapsed, would deprive the party of the benefits of the statute. In the absence of some showing justifying such course, it would be an abuse of discretion to thus nullify the statute. On the other hand, if the party has the unqualified right to file interrogatories at any time before trial, upon making the statutory affidavit, and have the cause delayed to await answers, he is armed with a power to abuse the privilege conferred by the statute. Due diligence in the prosecution or defense of an action applies to this statute as well as others. We adhere to the general rule stated in Parker v. Newman, supra. The action of the court in proceeding to trial, or rendering judgment by default for want of appearance, or nil dicit for want of plea after appearance, will only be controlled for abuse of discretion in ignoring interrogatories as in other matters.

Here, the cause was remanded to the state court in July, and the judgment nil dicit rendered the following January. No reason is shown why the interrogatories were not filed until December. The pendency of a hearing on demurrer to the complaint did not, within itself, hinder the filing of interrogatories. The original motion and supporting affidavit were defective in failing to show good cause for delay in filing the interrogatories. Upon all motions to vacate a judgment by default or nil dicit for the purpose of making defense to the action, a showing must be made of the existence of a good defense. The original motion and affidavit were defective in this regard.

This brings us to consider the right to amend the motion, while still pending but after the expiration of 30 days from the rendition of the judgment, by adding new grounds for setting aside the judgment nil dicit. Under the common law, courts of general jurisdiction have full control over their orders and judgments during the term. For sufficient cause, the court may modify or vacate the judgment, either upon its own motion or on motion of the party injured. The judgment is said to be in the breast of the court until the end of the term. After the expiration of the term, the judgment becomes final, and the court is without power to open or vacate, except proceedings to that end are begun during the term and continued. The effect of the continuance of pending proceedings to vacate is to hold the judgment in fieri, retain it within the breast of the court, and subject to his control. Ex parte Doak, 188 Ala. 406, 66 So. 64; 1 Black on Judgments, §§ 180, 310; 34 C.J. p. 207, § 436, p. 210, § 437.

By statute, "after the lapse of 30 days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day." Code, § 6670.

This provision is part of a statute to provide open courts--fixing terms of practically half year periods. Acts 1915, p. 707. It merely fixes the time during which courts shall retain common-law control over judgments at 30 days, instead of during the term, and provides for retaining control by motion duly continued as theretofore.

In reviewing rulings on motions for new trial by appeal, under statutory procedure, the rule is declared that new and distinct grounds of motion for new trial presented after 30 days will not be considered. Sorsby v. Wilkerson, 206 Ala. 190, 89 So. 657; Atlantic C.L.R. Co. v. Burkett, 207 Ala. 344, 92 So. 456. These cases construe the statute quoted above as to that class of cases, but, evidently, in connection with the statute regulating appeals in such cases. All the rulings upon the original trial, the state of the evidence as supporting the verdict or the amount thereof, misconduct of parties or jurors, as well as other matters, are made the subject of such motions and reserved by bill of exceptions for review. As heretofore mentioned, the denial of motions to vacate judgments by default or nil dicit has not been treated as within the statute of appeals, but subject to the general supervisory powers of this court by mandamus. As relates to a judgment by default wherein the party for cause unknown has failed to appear, or a judgment nil dicit wherein the party has indicated a purpose to defend by an appearance, but fails for some cause to plead, the rule holding open judgments for the term or statutory period expresses that judicial care and prudence which aims to avoid inadvertent or improvident judgments working injustice.

To the same end, we think, as long as the judgment remains in fieri by proceedings to vacate, kept alive by continuance, the judgment should be considered still in the breast of the court, with the same power to vacate for good cause as in term time, and it is his duty to hear all grounds properly brought to his attention by original or amended motion.

Among the grounds of the amended motion was the following:

"For that the circuit court of Mobile county, Ala., was and is without jurisdiction to entertain, hear, or determine the cause of action sought to be declared on in the original or amended complaint in the above-styled cause; the jurisdiction to entertain, to hear or determine said cause of action being, alone, under the laws of the United States, in the Court of Claims of the United States."

Several special counts of the complaint, as amended, claim damages for the breach of a contract of date September 1, 1918, and modified March 13, 1919, whereby plaintiff agreed to fabricate structural steel for ships at a stipulated...