Ingram v. Alabama Power Co.

• Decision Date: 05 April 1917
• Docket Number: 7 Div. 851
• Citation: 75 So. 304,201 Ala. 13
• Parties: INGRAM, Probate Judge, v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

75 So. 304

201 Ala. 13

INGRAM, Probate Judge, v. ALABAMA POWER CO.

7 Div. 851

Supreme Court of Alabama

April 5, 1917

Rehearing Denied May 17, 1917

Appeal from Circuit Court, Clay County; Marion H. Sims, Judge.

Mandamus by the Alabama Power Company against F.J. Ingram, as Judge etc. From the final order in favor of applicant, the probate judge appeals. Affirmed.

Appellee on the 29th day of October, 1915, obtained in the probate court of Clay county an order or decree of condemnation of a right of way across the lands of one J.M. Steverson. The proceedings of condemnation were regular on their face, and recited that notice of the proceedings and of the day set for their hearing was by the sheriff duly served upon the owner of the land, J.M. Steverson, on the 13th day of October 1915; but no appearance was ever entered by Steverson, and the necessary and proper orders of and for condemnation were made by the probate court on the day set, the proceedings culminating in a final order or decree of condemnation confirming the report of the commissioners.

On the 27th day of December, 1915, two months after rendition of this final order or decree, Steverson applied to the probate court to set aside the order of condemnation, because of a false return of the sheriff, alleging that no notice or process was served on him, and that he had had no other notice thereof. This application to set aside the judgment order, or decree was made under the four months statute (section 5372 of the Code). Notice of this application to set aside the judgment and grant a rehearing was served on appellee. Appellee corporation appeared and demurred to the petition or application, assigning various grounds, among which were these: That the court was without jurisdiction or power to award the relief prayed, and that the petition or application did not state facts sufficient to warrant the relief asked, even had the court such jurisdiction; the demurrer particularly pointing out the defects or insufficiencies of the petition or application.

The probate court overruled the demurrer, and on the 15th day of January, 1916, set aside the order or decree of condemnation, and awarded a rehearing or new trial. Appellee thereupon applied to the circuit court of Clay county for a writ of mandamus compelling the probate judge of Clay county to annul his order setting aside the order or decree of condemnation and granting a rehearing or new trial. The probate judge appeared on the order of the circuit court, to show cause, etc., and a hearing was had, and the mandamus made final, commanding the probate judge to annul his former order granting a rehearing under the four months statute; and from this final order the probate judge prosecutes this appeal.

Riddle & Riddle, of Talladega, for appellant.

Knox, Acker, Dixon & Stewart, of Talladega, for appellee.

MAYFIELD J.

It has been definitely settled by this court that the proper and appropriate practice is to appeal from orders, judgments, or decrees which deny or refuse applications for rehearing made under the four months statute, because such order or judgment is final, disposing of the application and the judgment sought to be set aside; but, if the application to set aside the judgment and grant a rehearing is erroneously made, the order is not final, because it does not dispose of the case, but restores it to the docket for a new trial. In such case there is no judgment to support an appeal, and hence errors (if such have intervened) could not be reviewed or corrected on appeal. This being true, the proper and appropriate practice and remedy is by mandamus to compel annulment of improper orders, and restoration of the judgment or decree erroneously set aside, thus preventing a rehearing or new trial. Ex parte North, 49 Ala. 385; Ex parte O'Neal, 72 Ala. 560; O'Neal v. Kelly, 72 Ala. 559; Heflin v. Rock Mills, 58 Ala. 613; Chastain v. Armstrong, 85 Ala. 217, 3 So. 788; Seymour v. Farquhar, 95 Ala. 528, 10 So. 650; Brazel v. New South Coal Co., 131 Ala. 418, 30 So. 832.

The section of the Code under which the probate judge acted in setting aside the judgment of condemnation and awarding a rehearing, otherwise known as the "four months statute," reads as follows:

"5372. *** When a party has been prevented from making his defense by surprise, accident, mistake, or fraud, without fault on his part, he may, in like manner, apply for rehearing at any time within four months from the rendition of the judgment."

The origin, object, purpose, and effect of this statute has been frequently stated by this court. It is said that the purpose of the Legislature, in its enactment, was to afford to litigants in courts of law a remedy concurrent with, but less expensive and more expeditious than, similar relief theretofore available only in a court of equity. The statutory remedy is purely concurrent with that afforded by a court of equity, and is not at all exclusive of the latter, to which resort yet may be had, without even showing an excuse for not resorting to the former. Evans v. Wilhite, 167 Ala. 587, 52 So. 845.

The statutory remedy in the court of law which renders the judgment sought to be set aside is the institution of a new action, suit, or proceeding, and not the mere prolongation of the one theretofore instituted in such court, culminating in the judgment sought to be set aside. The petition or application to the court to set aside the judgment and grant a rehearing must, of course, state facts sufficient to warrant the setting aside or annulling of a solemn judgment of a court of record, as the relief sought is the same as would be awarded by a court of chancery on a proper bill filed for that purpose; and as the remedy is concurrent with another, the petition or application must, of course, state the same, or similar facts which a bill in equity for that purpose would be required to state. The petition must follow in legal effect, though not in haec verba, the language of the statute, which a bill in equity must do, and of course must be filed within four months from the rendition of the judgment sought to be set aside--which is not true as to a bill in equity filed for that purpose. The rules of pleading and practice under the statute, and those in chancery, are analogous and similar, but of course not the same in wording.

The substance of the bill in equity, and that of the petition under the statute, however, must be the same, to warrant the relief of a rehearing. It will also be observed that the statute does not attempt to say what the petition or application shall contain, but merely states the grounds or causes for which the rehearing may be granted.

It is a rule, applicable alike in courts of law and courts of equity that a new trial or rehearing will never be granted to a defendant or respondent, unless it be made to appear that he has a good defense, and therefore that the judgment on another trial would probably be different from the one set aside. It would be wholly useless to set aside a judgment, when, so far as it is made to appear, the judgment rendered was correct, and on another trial a like judgment would be rendered. While a court of equity, or a law court acting under the statute, will set aside a judgment rendered without proper notice against a party to the suit, yet such party must both allege and prove want of notice, and that he has a meritorious defense. Fields v. Henderson, 161 Ala. 535, 50 So. 56; McDonald v. Cawhorn, 152 Ala. 357, 44 So. 395; Dunklin v....