Gray v. Bank of Moundville

• Decision Date: 18 March 1926
• Docket Number: 2 Div. 890
• Parties: GRAY et al. v. BANK OF MOUNDVILLE et al.
• Court: Alabama Supreme Court

107 So. 804

214 Ala. 260

GRAY et al. v. BANK OF MOUNDVILLE et al.

2 Div. 890

Supreme Court of Alabama

March 18, 1926

Appeal from Circuit Court, Wilcox County; S.F. Hobbs, Judge.

Bill in equity by A.J. Gray and another against the Bank of Moundville and others. From a decree for respondents complainants appeal. Affirmed.

Harwood & McQueen, of Tuscaloosa, for appellants.

Foster Rice & Foster, of Tuscaloosa, for appellees.

ANDERSON C.J.

This bill was filed to cancel or vacate a judgment by default rendered by the judge of the Seventeenth judicial circuit at Linden in the circuit court of Greene county. Many of the points of attack made against said judgment have been decided adversely to appellants in the recent case of Carothers v. Callahan, 93 So. 569, 207 Ala. 611. It is insisted however, by appellants' counsel, that in said case the court had adopted a rule as authorized by the latter part of the Act of 1915, p. 825, prescribing the time and place of calling cases for judgments by default, and that said rule authorized the transmission of the paper, etc., to one of the judges at any point in the circuit; that in the present instance there was not only no such rule, but one existed providing for the hearing of jury and nonjury cases at a place and time different from the date of and place of rendering the judgment in question. This, however, did not go to the jurisdiction or power of the judge, but was an irregularity which would have given the defendant in the judgment perhaps good grounds for a new trial as for deceit or surprise, but is not available to these complainants, who were not parties to the suit. We do not regard the latter part of the act as to a rule as mandatory, but discretionary, and not a condition precedent to the rendition of the judgment in question.

It is urged that the law authorizes the court and not the judge to render judgments, and that Judge Jones was not at the time a court. The word "court" is frequently used as meaning the judge when he is exercising any judicial powers conferred on him by law. Carothers v. Callahan, 93 So. 569, 207 Ala. 611; State v. Baudoin, 40 So. 42 115 La. 773; A.C.L.R.R. v. Mallard, 43 So. 755, 53 Fla. 515; Sartin v. Snell, 125 P. 47, 87 Kan. 485, Ann.Cas.1913E, 384. The case of Scott v. State, 37 So. 366, 141 Ala. 39, does not hold to the contrary in all instances and under all circumstances. It merely holds that the statute there considered required...