Hammond v. Brooks
Decision Date | 16 October 1987 |
Citation | 516 So.2d 614 |
Parties | Donald H. HAMMOND and Elizabeth Hammond v. Eulalia T. BROOKS. 86-542. |
Court | Alabama Supreme Court |
Roscoe Roberts, Jr., of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants.
David Craddock, Huntsville, for appellee.
The issue presented on appeal is whether a trial court can disregard a stipulation signed by all parties and filed with the clerk to dismiss the case without prejudice, and enter an order dismissing the case with prejudice.
This appeal is from a voluntary dismissal made pursuant to Rule 41(a), Ala.R.Civ.P. Donald M. Hammond and Elizabeth Hammond filed suit in the Circuit Court of Madison County in March 1983, against Eulalia Thetford Brooks and Norman Stephens, alleging fraud and misrepresentation in the sale of a residence. A default judgment was entered against Brooks on May 12, 1983, and the trial court assessed damages of $21,939. A motion to set aside the default judgment was filed by Brooks, and the trial court granted it.
The case was not put back on the trial court's docket until 1986. At that time, a pretrial conference was scheduled for September 1986, and Norman Stephens was dismissed as a defendant. On December 1, the trial court called the case for trial. The attorneys for the parties, however, stated that a settlement of the case had been tentatively reached, but that the settlement was subject to ratification by the insurance carrier. The attorneys requested a continuance, which the court denied. The case was called for trial on December 3, 1986, at 9:30 a.m., but the parties were given until 1:30 to prepare for trial.
Prior to the time the case was called for trial, at 1:30, a stipulation of dismissal, without prejudice, was signed by all parties appearing in the action. The stipulation was then filed with the clerk of the Madison County Circuit Court. At 1:30 p.m., the parties presented the court with a copy of the stipulation filed with the clerk. The court then asked the parties whether they were ready for trial; both attorneys answered no, and the following transpired:
The trial court's written order dismissing the case with prejudice was filed on January 14, 1987. The Hammonds appeal from that order.
Rule 41(a), Ala.R.Civ.P., provides:
(Emphasis added.)
In Bevill v. Owen, 364 So.2d 1201 (Ala.1979), this Court stated the following regarding Rule 41:
The issue in this case has not been previously examined by this Court. The committee comments to Rule 41 state that this rule is substantially the same as the federal rule, and we normally consider federal cases interpreting the federal rules of procedure as persuasive authority. Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala.1980).
Rule 41(a)(1)(ii) was expressly applied in First National Bank of Toms River, N.J. v. Marine City, Inc., 411 F.2d 674 (3d Cir.1969). In that case, both a complaint and a third-party complaint were pending, and...
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...R. Civ. P. 41 terminates the action when the notice of the plaintiff's intent to dismiss is filed with the clerk. See ... Hammond v. Brooks, 516 So.2d 614 (Ala.1987). The committee comments to Rule 41, Ala. R. Civ. P., note that the rule is ‘substantially the same as the corresponding feder......
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