Gibson v. Elba Exchange Bank

Decision Date22 August 1957
Docket Number4 Div. 896
PartiesAshley GIBSON v. ELBA EXCHANGE BANK.
CourtAlabama Supreme Court

C. L. Rowe, Elba, for appellant.

J. C. Fleming, Elba, Alton L. Turner, Luverne, and J. O. Sentell, Jr., Montgomery, for appellee.

SIMPSON, Justice.

Supersedeas proceeding by Ashley Gibson, appellant. Code 1940, Tit. 13, § 128. The appellant is seeking to have superseded an execution issued out of the Coffee County Circuit Court. The execution was to satisfy a judgment (as we interpret it) rendered against appellant on two promissory notes.

In 1950 Elba Exchange Bank, the appellee, filed an action against the appellant in detinue and to recover on two promissory notes held by appellee. The first count of the complaint was in detinue; count number 2 was on a promissory note executed by appellant in February, 1949 and payable in May, 1949; count 3 was on a promissory note executed by appellant in December, 1944 and payable in March, 1945. Both notes were secured by a mortgage on the property described in the first count.

The appellant was properly served with process in this 1950 action. Not appearing to defend or contest the action in any manner, Elba Exchange Bank caused a default judgment to be entered against the defendant-appellant for the property sued for in the first count and a money judgment for $5,159.19. It is upon this money judgment that execution was issued.

The appellant in 1955, sought by an equitable action to quiet title to prevent the levying of the execution on his property. This equitable action was instituted in the Circuit Court of Crenshaw County, the basis of the relief prayed for being fraud connected with the sheriff's return. The cause was decided adversely to Gibson by this court. Gibson v. Elba Exchange Bank, 264 Ala. 502, 88 So.2d 163.

After failing in the equitable action, the appellant then returned to the Circuit Court of Coffee County and instituted the present proceeding wherein he seeks to supersede the execution whereby a levy was made on his property located in Crenshaw County.

The contention of the appellant may be summarized as follows: The judgment rendered by the court resulted in a finding for the defendant on count 3 of the complaint, i.e., on the note executed in 1944 and due in 1945; that the property awarded the bank (first count) in the judgment was to be applied to the money judgment likewise awarded the bank. Further, that the value of the property, taken by the bank pursuant to the judgment and held by it, was more than sufficient to satisfy the money judgment. As a consequence of this contention the appellant here is seeking to supersede the execution and require the bank to satisfy the claim held by it against the appellant.

The trial court, in the hearing on this proceeding, heard the evidence ore tenus. Therefore, where there is conflicting evidence, unless his finding is clearly wrong or contrary to the great weight of the evidence, there is a presumption in favor of such finding. See 2A Ala.Dig., App. & Error, k 931(1)(b).

First, as to matters that may be inquired into by this proceeding.

'It is said in Bacon's Abridgement (volume 1, p. 510,) in reference to the writ of audita querela: This process 'is a writ to be relieved against an unjust judgment or execution, setting them aside, for some injustice of the party that obtained them, which could not be pleaded in bar to the action; for, if it could be pleaded, it was the party's own fault, and therefore he shall not be relieved, that proceedings must not be endless'. In our practice, the proceeding by supersedeas is substituted for the writ, and generally will lie in the cases in which a writ of audita querela would lie at common law. Matter which operates an equitable satisfaction of a judgment, may be inquired into by this proceeding, and an execution issued to enforce the judgment may be superseded and vacated; but matters which go behind the judgment cannot be inquired into. * * *'. Thompson v. Lassiter, 86 Ala. 536, 540, 6 So. 33, 34.

'* * * The primary and principal object of the remedy by the writ of supersedeas is to prevent the abuse of the process of the court, and, while it is said to be in the nature of a bill in equity as to matters of discharge insisted on in the petition, which does not appear of record, such matter of discharge insisted on in the petition must be matter arising subsequent to, and not anterior to, the judgment'. (Emphasis supplied.) Jresse French Piano & Organ Co. v. Bradley, 143 Ala. 530, 39 So. 47. See also Campbell v. Byers, 6 Ala.App. 292, 60 So. 737.

The contention of fraud entering into the procurement of the judgment being settled by this court adverse to appellant on the former appeal of the equitable action, the only matter to be inquired into an this appeal is that which occurred subsequent to the rendition of the judgment.

The appellant contends on this appeal that when the court did not return a judgment for the plaintiff on count 3 of the complaint in the original action, then it necessarily followed that there was a finding for the defendant on such count. In support of this the appellant cites the cases of Wittick v. Traun, 27 Ala. 562 (Dissenting Opinion of Rice, Justice, adopted as opinion in Handley v. Lawley, 90 Ala. 527, 8 So. 101; Louisville & N. Railroad Co. v. Walker, 128 Ala. 368, 30 So. 738; and Central of Ga. Railway Co. v. Corbitt, 218 Ala. 410, 118 So. 755. The appellant properly construes the holdings of these cases, i.e., a verdict for the plaintiff for only a portion of the property claimed in a detinue action or on certain counts and not on others is generally a verdict for the defendant for the remainder. However, we do not think such a rule to be here applicable. In those suits the defendants appeared and defended them, and the judgments rendered were rested on a finding of a jury upon contested claims. Such is not the case here. After being duly served with process of suit, the defendant made no appearance, but wholly defaulted. When a defendant has been properly served with process and defaults, the default constitutes 'an admission of traversable allegations that are well and properly pleaded and are material to the issues or only such allegations as are necessary to obtain the particular relief sought'. 49 C.J.S. Judgments § 201(b), p. 358. See also Ex parte Allen, 166 Ala. 111, 52 So. 44. It follows, therefore, that since the default by the defendant-appellant constituted an admission of the facts well pleaded, there could be no finding in favor of the appellant for something he had already confessed. There could, therefore, be no subsequent finding in favor of the defendant on any count of the complaint which was well pleaded. What was left for the trial court to determine then was the amount of recovery in property and money the plaintiff was due. The resulting judgment in the lower court therefore was a finding for the plaintiff (the defendant having defaulted) and an award to it of the property claimed and in addition an award to it of a money judgment against Ashley Gibson in the sum of $5,159.19.

It is the contention of ...

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10 cases
  • City of Decatur v. Parham, 8 Div. 910
    • United States
    • Alabama Supreme Court
    • February 19, 1959
    ...reference need be made to those counts. Central of Georgia Ry. Co. v. Corbitt, 218 Ala. 410, 118 So. 755. See Gibson v. Elba Exchange Bank, 266 Ala. 426, 96 So.2d 756. In none of the counts of the complaint did plaintiff base her right to recover on the theory of negligence of the servants,......
  • Martin v. Cash Express Inc.
    • United States
    • Alabama Supreme Court
    • September 30, 2010
    ...in favor of the party against whom the judgment has been taken for something he has already admitted. Gibson v. Elba Exchange Bank, 96 So.2d 756, [266 Ala. 426,] 429 (Ala.1957). See also, Ex parte State ex rel. J.Z., 668 So.2d 566 (Ala.1995)(Alabama Supreme Court refused to relitigate the i......
  • Bice v. Jones
    • United States
    • Alabama Court of Civil Appeals
    • January 5, 1970
    ...to avoid the resulting judgment or decree. * * * ' Boothe v. Shaw, 214 Ala. 552, 108 So. 563, 564. In the case of Gibson v. Elba Exchange Bank, 266 Ala. 426, 96 So.2d 756, the court '* * * When a defendant has been properly served with process and defaults, the default constitutes 'an admis......
  • City of Montgomery v. Mott
    • United States
    • Alabama Supreme Court
    • August 22, 1957
  • Request a trial to view additional results

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