First Nat. Bank v. Garrison, 6 Div. 182

• Decision Date: 16 December 1937
• Docket Number: 6 Div. 182
• Citation: 177 So. 631,235 Ala. 94
• Parties: FIRST NAT. BANK OF BIRMINGHAM v. GARRISON.
• Court: Alabama Supreme Court

177 So. 631

235 Ala. 94

FIRST NAT. BANK OF BIRMINGHAM v. GARRISON.

6 Div. 182

Supreme Court of Alabama

December 16, 1937

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Appeal by the First National Bank of Birmingham from a judgment against it as garnishee and in favor of Robert C. Garrison as plaintiff, wherein the appellee (plaintiff) moved to dismiss the appeal.

Motion to dismiss overruled.

Cabaniss & Johnston and L.D. Gardner, Jr., all of Birmingham, for appellant.

J.L Drennen, of Birmingham, for appellee.

KNIGHT Justice.

This cause has been before this court on two former appeals. Garrison v. First National Bank of Birmingham, 231 Ala. 71, 163 So. 624, and Garrison v. First National Bank of Birmingham, 233 Ala. 687, 173 So. 88, 90.

On last appeal, the cause was again reversed, and remanded to the lower court, "with directions to enter a judgment in favor of the plaintiff against the garnishee."

When the case came again before the circuit court, the court entered a judgment in the following words:

"On this the 2nd day of April, 1937, came the plaintiff by his attorneys, also came the garnishee, First National Bank of Birmingham, and in compliance with directions of Supreme Court that 'inasmuch as it appears of record that the suggested claimant has been duly cited and has appeared and filed a claim and has withdrawn her said claim, and it further appearing that the plaintiff has recovered a judgment against the defendant, the plaintiff is entitled to a judgment against the garnishee', now, therefore.

"It is ordered and adjudged by the Court that the plaintiff have and recover of the garnishee, First National Bank of Birmingham, Alabama, the sum of Two Thousand Three Hundred Eighteen & 31/100 ($2,318.31) Dollars that being the amount of said garnishee's indebtedness to defendant as disclosed by its answer, besides all costs in proceeding between plaintiff and garnishee, and that execution issue accordingly. Garnishee excepts.

"It is further ordered and adjudged by the Court that the payment of this judgment by the garnishee or any part thereof shall be a payment pro tanto on the judgment against the defendant."

Upon the rendition of this judgment by the circuit court, the First National Bank of Birmingham paid the judgment and then took an appeal from said judgment to this court. This appeal is now before the court.

The appellee, in advance of a submission of the case on its merits, has filed and submitted here a motion to dismiss the appeal, assigning a number of grounds; the chief or principal ground being that, in entering the judgment in the circuit court, that court performed a mere ministerial act, inasmuch as this judgment was entered in compliance with the mandate of this court; that in appealing from such judgment, the appellee is but attempting to have here a second rehearing of the issues involved.

It may well be conceded that appellant's real purpose is to obtain a second rehearing of the cause, but this fact will present no obstacle to such reconsideration if, under the law in this state, the appellant is entitled to prosecute the appeal. Code, § 10287.

It must be conceded, also, that this court did not proceed, on last appeal, to render any final judgment against the said First National Bank of Birmingham, but directed that the circuit court should render the judgment. Until that judgment was, in fact, rendered by the circuit court, there was no judgment, certainly no final judgment, against any one.

Of course, the "directions to enter a judgment in favor of the plaintiff against the garnishee" necessarily involved the judicial ascertainment by the lower court of the amount of the judgment to be entered. The judgment, when the amount was ascertained and fixed, became the final judgment of the court. To hold that such a judgment was not appealable might lead to great injustice. The ascertainment of the amount of the judgment necessarily involved the exercise of judicial powers by the court, and not merely ministerial acts. Therefore, appeal, not mandamus, would be the only remedy. If appeal will not lie, either party might suffer from an improper ascertainment, with no right of review open to him. To illustrate, suppose the circuit court should, under directions of this court to enter judgment for one of the litigants, proceed to ascertain and fix the amount of that judgment largely in excess of the proper amount, would there be no appeal for such an one? Would he be remediless? Or, suppose the circuit court should, under similar directions, enter the judgment for an amount less than the proper amount, would the aggrieved party have no way to correct the error?

In many of the states the "law of the case" rule is adhered to, but in those cases, an appeal will lie to correct errors of the trial court in attempting to carry into effect the mandate of the higher court. If the lower court has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal. This results from the fact that in such states, where the "law of the case" rule is adhered to, the former decision, whether right or wrong, is the law of the case. 5 Corpus Juris Secundum, Appeal and Error, §§ 1823, 1824. But it seems generally held in those states where the "law of the case" rule applies, that where the lower court has failed to comply substantially with the mandate of the appellate court an appeal will lie. Randall v. Duff, 107 Cal. 33-36, 40 P. 20, and Lambert v. Bates, 148 Cal. 146, 82 P. 767.

In the case of Popp v. Inheritance Tax Collector, 148 La 663, 87 So. 508, the Supreme Court of Louisiana had, on a former appeal, reversed the case, and held that the inheritance tax collector was entitled to recover, and remanded the case with directions to the lower court to proceed in accordance with the views there expressed. After judgment entered by the lower court on the remandment, there was an appeal by the taxpayer. In the Supreme Court, the...