Hershey Chocolate Co. v. Yates

• Decision Date: 18 May 1916
• Docket Number: 6 Div. 284
• Citation: Hershey Chocolate Co. v. Yates, 196 Ala. 657, 72 So. 260 (Ala. 1916)
• Parties: HERSHEY CHOCOLATE CO. v. YATES et al.
• Court: Alabama Supreme Court

72 So. 260

196 Ala. 657

HERSHEY CHOCOLATE CO. v. YATES et al.

6 Div. 284

Supreme Court of Alabama

May 18, 1916

Rehearing Denied June 30, 1916

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

The Hershey Chocolate Company brought suit against Joseph A Yates and others, for the breach of a receiver's bond and there was judgment by default, which, on motion of defendant, was granted, and plaintiff appeals from such order granting the motion.Transferred from the Court of Appeals under ActApril 18, 1911, § 6, p. 449.Appeal dismissed.

Sterling A. Wood, of Birmingham, for appellant.

George E. Bush, of Birmingham, for appellee.

MAYFIELD J.

This appeal is from an order granting a motion in arrest of judgment.

Judgments can be arrested only for defects apparent of record.Mere defects, however, which are amendable, will not authorize the arrest or annulment of a judgment.

One of our statutes of jeofailes prohibits such action by trial or by appellate courts.Section 4143 of our Code is one, or a part of one, of the numerous statutes of jeofailes or amendments, passed first by the Legislatures of the various states.This one, as is well known, was intended to prevent the arrest or reversal of judgments as for mere defects in the form of the declaration, complaint, bill, or petition and to require that as to such formal defects advantage should be taken by special demurrer or other special pleading, so that such formal defect could be amended while the pleading was in fieri.Before the passage of such statutes, judgments were constantly arrested and reversed for merely formal defects, and though such defects were never complained of until after verdict and judgment.Kirkland v. Pilcher,174 Ala. 174, 57 So. 46;7 Mayf.Dig. 476.So the object and purpose of this particular statute was to change this rule, and limit objections to the judgment; or to the motion in arrest thereof, or objections in proceedings to amend, to those of substance only; and, if the declaration complaint, bill, or petition contained a substantial cause of action, no objection could be taken to it on motion in arrest, or in independent proceedings to amend or reverse, unless the objection was previously made; that is, before rendition.Kirkland v. Pilcher, supra.

In this case, however, we cannot inquire into the correctness or incorrectness of the order arresting the judgment, for the reason that the order arresting or annulling the judgment is not a final judgment; nor is it one of the interlocutory judgments from which our statutes authorize an appeal.

It is true that the effect of the order is to annul the final judgment and award another trial.The legal consequence is the same as that of an order granting a new trial, whether made during the term of the rendition or under the four-month statute, providing for rehearings in trial courts.The statutes of this state, authorizing appeals from orders or judgments granting or refusing to grant new trials, have been frequently construed by this court, for a quarter of a century, and held not to include orders or...