Ex parte Upchurch

• Decision Date: 31 March 1927
• Docket Number: 7 Div. 696
• Citation: Ex parte Upchurch, 112 So. 202, 215 Ala. 610 (Ala. 1927)
• Parties: Ex parte UPCHURCH.
• Court: Alabama Supreme Court

112 So. 202

215 Ala. 610

Ex parte UPCHURCH.

7 Div. 696

Supreme Court of Alabama

March 31, 1927

Original petition by W.M. Upchurch for mandamus to Hon. E.S. Lyman, as Judge of the Circuit Court of Clay County. Writ denied.

A.L Crumpton, of Ashland, for petitioner.

Pruet &amp Glass, of Ashland, and Steiner, Crum & Weil, of Montgomery for respondent.

GARDNER J.

This is a mandamus proceeding seeking the vacation of an order entered by the respondent as judge of the circuit court of Clay county, sitting in equity, setting aside a final decree rendered on April 29, 1926, in the cause of W.M. Upchurch (petitioner here) v. Farmers' State Bank of Ashland. Such order vacating said decree was entered June 5, 1926, in response to the motion of the Farmers' State Bank filed in the cause on May 18, 1926. The final decree of April 29 1926, was entered upon original bill and decree pro confesso against the respondent, Farmers' State Bank. The motion was submitted upon oral testimony before the judge as to excuse or explanation of defendant failing to file answer. The answer to the bill, which is set out in the answer of respondent here, discloses a meritorious defense to the suit.

The trial court concluded upon a consideration of the evidence offered on the motion, and in view of the answer of respondent, Farmers' State Bank, that in order that justice be subserved the cause should be reopened so that said respondent should have an opportunity to defend, and entered the order of June 5th granting a rehearing and reinstating the cause on the docket for trial.

The case was one in equity, and, while respondent's motion is referred to as a motion for a new trial, it is more properly designated as an application for rehearing under chancery court rule 81. Volume 4, Code 1923, p. 932; Johnson v. Johnson (Ala.Sup.) 111 So. 7.

It is suggested by counsel for petitioner that the motion is not to be considered as an application for rehearing in equity under the above-cited rule, for the reason that such rule is only applicable where there has been an actual trial of the cause, and is confined to the record only. We think this insistence fully answered by the case of Ex parte Gresham, 82 Ala. 359, 2 So. 486, where mandamus was sought to vacate an order granting a rehearing of a consent decree. In principle there can be no distinction, so far as the application of chancery rule 81 is concerned, between granting such rehearing of a decree rendered by consent of the parties and one rendered on decree pro confesso. In speaking of the further argument that proof was not properly to be considered on such application, but only the record, the court in the Gresham Case said:

"The provision of the latter rule [now rule 81] that 'the petition must be confined to the case made by the record,' does not exclude the presentation and consideration of extrinsic facts, if relevant and pertinent to the case made by the record; for such construction would make nugatory the express provision, that 'the facts, if they do not appear from the records of the court, must be verified by the affidavit of the party, or some other person.' "

We think therefore that the motion is properly to be considered as an application for rehearing in an equity suit, governed by the foregoing rule. The application was made within 30 days after the rendition of the final decree (section 6670 Code of 1923), but it is insisted the same was not acted upon until...