Ex parte Whitehead

• Decision Date: 19 November 1940
• Docket Number: 6 Div. 698.
• Citation: 29 Ala.App. 583,199 So. 876
• Parties: EX PARTE WHITEHEAD. IN RE WHISLER ET AL.
• Court: Alabama Court of Appeals

199 So. 876

29 Ala.App. 583

EX PARTE WHITEHEAD. IN RE WHISLER ET AL.

6 Div. 698.

Court of Appeals of Alabama

November 19, 1940

Rehearing Denied Dec. 17, 1940.

Original petition of C. A. Whitehead for mandamus to require J. Fritz Thompson, as Presiding Judge of the Tenth Judicial Circuit County of Jefferson, to dismiss the cause of H. S. Whisler plaintiff, v. C. A. Whitehead, defendant, pending on the docket of said court.

Mandamus awarded.

Certiorari denied by Supreme Court in Ex parte Whisler, 6 Div. 804, 199 So. 879.

Pritchett & Giles, of Birmingham, for petitioner.

Jim Gibson, of Birmingham, for respondent.

SIMPSON Judge.

Application to this court for mandamus directed to the Presiding Judge of the Tenth Judicial Circuit to require the dismissal of a cause (Whisler v. Whitehead) now on the docket of the Circuit Court of Jefferson County. The petitioner's right to the writ is dependent upon determination of the question of whether there has been a discontinuance of said cause. If there has been, the writ must be awarded, directing the dismissal of same. Ex Parte Holton, 69 Ala. 164; First National Bank v. Cheney, 120 Ala. 117, 23 So. 733; De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704.

(The Reporter will set out, briefly, in chronological order, the progress of the cause in said court, with the dates of the proceedings, as shown by the transcript.)

The learned Presiding Judge of said Circuit quotes the following as authority for his refusal to grant the defendant's motion to dismiss the case:

" 'The Courts of Alabama at an early date relaxed the Rule of the Common Law so as to hold that a discontinuance can only be predicated of some positive act of the actor in the drama or in consequence of the actor's failure to perform some precedent duty enjoined upon him by law.'

"Sales Method Co. v. City Meat Market, 222 Ala. 12, 130 So. 536; Roszell v. State, 19 Ala.App. 462, 98 So. 35; Ex parte Doak, 188 Ala. 406, 66 So. 64; Ex parte Holton, 69 Ala. 164; Ex parte Humes, 130 Ala. 201, 30 So. 732; City of Mobile v. Board of Revenue, 219 Ala. 60, 121 So. 49."

Although decision of the question has not been without difficulty, it is our opinion that the plaintiff, (Whisler), by his own act, produced a discontinuance of his case. True, he may not have failed "to perform some precedent duty" required of him by law, but, clearly, he, by his own positive act, caused the removal of the case from the docket of the Circuit Court by taking an abortive default judgment against the defendant (Whitehead) on a summons and complaint which had never been served on said defendant, after which the cause was allowed to repose quiescently for more than nine years. It is difficult to conceive a stronger case of discontinuance. Suit was filed and summons and complaint issued, January 9, 1929. There was no proper execution of the summons on the defendant as required by the statute. Code 1923, Sec. 9419. Despite this, however, the plaintiff moved for a judgment by default against the defendant, which was accordingly entered on April 3, 1929. Aside from the issuance and return ("No Property Found") of two writs of fieri facias in 1929, the case, having been thus removed from the docket of the court, lay dormant until December 15, 1938, when a writ of garnishment on said judgment was issued. Thereafter, on January 4, 1939, upon motion of defendant, the court very properly and promptly entered an order vacating the said judgment. 33 C.J., p. 1074, Sec. 35(2); idem, p. 1082, Sec. 44(b); Freeman on Judgments, Vol. 1, Sec. 196, p. 385; Sec. 198, p. 387; Sec. 219(a), p. 431; Buchanan v. Thomason, 70 Ala. 401, 402; Tennessee C. I. & R. Co. v. Wise, 159 Ala. 632, 636, 49 So. 253; Cook v. Phonoharp Co., 157 Ala. 501, 502, 47 So. 1035; Louisville & N. R. Co. v. Tally, 203 Ala. 370, 372, 83 So. 114; Ex parte Luther, 232 Ala. 518, 520, 168 So. 596.

According to the defendant, he first became aware of the suit and the claim when he received notice of the garnishment in December of 1938; that during said period he was a resident of the county, was easily available for service of process and his whereabouts known to the plaintiff; that in the interim he had sought to be acquitted of all debts by proceedings of bankruptcy, but, being ignorant of this claim or suit, did not schedule it; that although he had a valid defense thereto, the witnesses were unascertainable and if procurable, their recollection of the matter necessarily would have become dim through the years, etc.

It thus appears that, by his own positive and voluntary act in taking the ineffectual and invalid judgment in 1929, the plaintiff removed his case from the docket of the court, and thereby caused a chasm in the proceedings or a discontinuance for many years. Such lack of diligence on the part of the plaintiff in the transaction of a law suit, always a serious matter, should not be countenanced and the trial court, in our view, erred in permitting the plaintiff, against the timely motion of the defendant, to proceed further with the suit.

It was held in Ex parte Holton, supra, 69 Ala. page 167, that if the cause is kept off the docket by the act of the plaintiff this will amount to a discontinuance; and in Forrester v Forrester, 39 Ala. 320, 323, that a discontinuance would occur if the cause had, by the active agency of the petitioner or...