Hanover Fire Ins. Co. v. Street

• Decision Date: 12 April 1934
• Docket Number: 8 Div. 555.
• Citation: 154 So. 816,228 Ala. 677
• Parties: HANOVER FIRE INS. CO. v. STREET et al.
• Court: Alabama Supreme Court

154 So. 816

228 Ala. 677

HANOVER FIRE INS. CO. v. STREET et al.

8 Div. 555.

Supreme Court of Alabama

April 12, 1934

Rehearing Denied May 31, 1934.

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

Bill in equity by the Hanover Fire Insurance Company against O. D Street, Sr., and another. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed rendered, and remanded.

Coleman Spain, Stewart & Davies, of Birmingham, for appellant.

W. R Bradford, of Guntersville, for appellees.

KNIGHT Justice.

Bill by the Hanover Fire Insurance Company against the appellees, O. D. Street, Sr., and John C. Street, to vacate and annul a judgment obtained by the appellees in the circuit court of Marshall county against the appellant; to enjoin the appellees from proceeding to enforce the collection of said judgment, pending a final determination of this cause; to have the court to declare and to decree that there was no valid contract or agreement between the appellant and appellees to insure the building, for the damage of which by fire the judgment was obtained; and for the allowance of an alleged equitable set-off, and for general relief.

For a proper understanding of the case, and our conclusion thereon, we deem it necessary that at least some of the salient facts, upon which the complainant bases the prayer for relief, should be stated.

It appears that the appellant is a foreign corporation, doing an insurance business in the state of Alabama; that the appellees owned a house and lot in the town of Guntersville; that the dwelling upon said lot was damaged by fire on January 28, 1929; and the owners of said property claiming that the appellant, insurance company, had insured, or contracted to insure, said property against loss or damage by fire, at the time the fire occurred, instituted suit against appellant in the circuit court of said county to recover for the loss sustained by them by reason of said fire.

The suit at law by the appellees was filed on November 4, 1930, and on November the 21st, same year, the defendant in said suit made appearance in the case, by attorneys, and filed demurrers to the complaint.

The appellant was represented in said suit by a firm of lawyers who were nonresidents of the county, and who resided in Birmingham, Ala. The fact that said attorneys were nonresidents of Marshall county, and that they resided in Birmingham, Ala., was known to the clerk of the court in which said cause was pending.

In transmitting the defendant's demurrer to the clerk of the circuit court at Guntersville, the defendant's attorneys wrote the clerk as follows:

"Re-O. D. Street, Sr., et al. v. Hanover Fire Ins. Co.

"We herewith enclose demurrers to the complaint in this case and also original copy of the interrogatories to be propounded to each of the plaintiffs, and ask that you kindly file same and acknowledge receipt.

"We also ask that you kindly keep us advised from time to time as to when this case will be set for trial, settling of pleading, or otherwise."

This letter was returned by the clerk with the following notation made by that officer: "Filed, November 21, 1930, Woodie Lewis, Clerk."

It is further made to appear that on the 18th day of January, 1931, the plaintiffs in the suit at law filed an amendment to their complaint, and that a copy of said amendment was mailed to the defendant's attorneys at Birmingham by O. D. Street on January 17, 1931. There is no doubt about the receipt by said attorneys of the copy of the amendment.

It is averred that said suit at law was set for trial on April 1, 1931, "without any notice or knowledge to your complainant or its attorney, and that your complainant and its attorney had no notice or knowledge of any nature or kind that said cause was set for trial on said day." That the clerk of the court did not notify the defendant or its attorneys in any manner whatsoever that said cause was set for trial, at the term or session of the court at which the judgment was rendered, is averred in the most positive terms; and these averments, on demurrer, we must take and treat as true.

It appears that the circuit court of Marshall county was in session, trying causes with juries on April 1, 1931, and on said day the court, Hon. Paul Speake, judge of the Twenty-Third judicial circuit, presiding, rendered a judgment, nil dicit, in favor of the plaintiffs in said cause against the defendant therein, the Hanover Fire Insurance Company, for the sum of $1,740.

It also appears from the bill of complaint that the appellant's attorneys were fully aware at the time, and prior thereto, of the fact that a term of the court was being held in Marshall county, trying litigated law cases; but the appellant alleged in its bill, as amended, that neither it nor its attorneys had notice or knowledge of the rendition of said judgment until on or about October 5th thereafter, and that it acquired this information from a letter written by Hon. O. D. Street to its attorneys, with reference to the payment of said judgment. In this connection, it is averred: "Your complainant is further informed and believes, and upon such information and belief avers a fact to be, that after nil dicit judgment was entered in said cause at law, the respondents to this cause requested and caused the clerk of the Circuit Court of Marshall County, Alabama, to withhold any execution on said judgment and caused said clerk not to give any notice to your complainant or its attorneys of record until six (6) months had elapsed from the rendition of said judgment, and until after all remedies and rights of your complainant to have said judgment set aside, or to appeal from said judgment, had lapsed or expired: and your complainant avers that by reason of said facts it was deprived of the right to defend said suit; and your complainant was deprived of his day in court; and your complainant does not now have an adequate remedy at law, and its only remedy exists in a court of equity."

The appellant avers in terms, in its bill, its freedom from negligence, and that it was prevented by fraud, accident, surprise, or mistake from making its defense to the suit.

We deem it unnecessary to go further into a detailed statement of the facts relied upon to sustain the equity of the bill.

Among other grounds for relief against said judgment, the complainant insists that the judgment should be set aside for the failure of the clerk to give it, or its attorneys, the notice required by section 9487, Code, and particularly the clerk's failure to comply with the following provisions of said section: "In civil cases, the clerk of the court shall notify attorneys of record who reside outside of the county of the day their case or cases are set for trial, which notice may be given either by letter or by mailing a copy of the docket of the court." We will take up and consider this insistence at a subsequent place in this opinion, after disposing of other contentions made by appellant.

It is urged by appellant that the judgment should be declared void, and vacated, because the record shows that the session or term of the court, at which the judgment was rendered, was presided over by the Hon. Paul Speake, judge of the Twenty-Third judicial circuit of Alabama, and not by the Hon. A. E. Hawkins, the judge of the circuit court of Marshall county. That there was nothing in the records of the Marshall county circuit court to show that said Hawkins was incompetent, or disqualified to preside upon the trial of said cause, nor did the records disclose any order of the Chief Justice of this court, directing the said Speake to hold said term of the court; and that the record also disclosed no appointment by the Governor of Alabama appointing Judge Speake to hold said court.

In support of its contention that Judge Speake was without authority to hold said court, appellant cites the cases of Ex parte City Bank & Trust Co., 200 Ala. 440, 76 So. 372; Darling v. Hanlon, 197 Ala. 455, 73 So. 20. Appellant also relies upon section 160 of the Constitution, and sections 6719 and 6720 of the Code.

There is manifestly no merit in the above-stated contention. The appellant entirely overlooks section 144 of the Constitution, which authorizes judges of the circuit court to hold court "for each other when they deem it expedient." We would be justified in assuming that Judge Hawkins deemed it expedient to have Judge Speake to preside over the court at the time the judgment was rendered. However, it is not even necessary to indulge this assumption, as Judge Speake was, and is, one of the duly elected and qualified circuit judges of this state, and he was presiding over a regularly called and designated term of the court. His acts cannot, while so presiding, be called into question as attempted in this case.

It is also insisted that the court improperly overruled appellant's (defendant's) demurrer to the complaint filed in the suit at law. If so, it would be a mere irregularity, reviewable on appeal, and cannot be made the basis for a bill to annul or vacate the judgment as in this case attempted.

In Freeman on Judgments, vol. 3 (5th Ed.), the author thus states the law on the subject of "Errors or Irregularities": "The sufficiency of the declaration, complaint or other similar pleading as a statement of a cause of action is a matter either expressly or impliedly determined by the court rendering the judgment, and equity will not interfere on the ground that the facts pleaded were not such as to constitute a cause of action. * * * There must always be some special ground of relief other than error of law."

The foregoing statement of the rule received the sanction and approval of this court in one of our...