Jennings v. Pearce

• Decision Date: 20 December 1893
• Citation: 14 So. 319,101 Ala. 438
• Parties: JENNINGS v. PEARCE.
• Court: Alabama Supreme Court

14 So. 319

101 Ala. 438

JENNINGS v. PEARCE.

Supreme Court of Alabama

December 20, 1893

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Action by Thomas Jennings, for use of Richardson & Reese, against Henry Pearce. From an order granting a motion to set aside and vacate a judgment against defendant, plaintiff appeals. Affirmed.

Richardson & Reese, for appellant.

Arrington & Graham, for appellee.

STONE C.J.

This was a motion to vacate and annul a judgment for money rendered at a previous term in favor of Thomas W. Jennings against Henry Pearce. Jennings had assigned the claim to his counsel, who had brought the suit, and recovered the judgment. The judgment was recovered in February, 1892, and the motion to set it aside was entered on the motion docket of the city court in September, 1892. The motion was signed by counsel for the movant, stating they appeared for the purpose of making the motion. It was addressed on the docket to "R. & R., Atty. for Thomas W. Jennings." This is the firm name of the attorneys who had brought the suit and recovered the judgment, and to whom the claim had been assigned. The motion was called for trial in February, 1893. R. & R. appeared for the purpose of resisting action on the motion at that time, on the ground that no written notice of the motion had been served on them, or on Jennings, their client. They stated no other reason why the motion should not be heard at that time. The court overruled the objection, and they excepted. The purpose of notice is to give information of intended action, and to inform the opposing party, so he will not be taken by surprise; and notice to counsel of record is equivalent to notice to the party himself. Code 1886, § 2736; 3 Brick. Dig. p. 712, § 37. When there is an appearance, either by a party or his counsel, this is evidence that such party had knowledge of the action proposed to be taken. When present, and having attention directed to the subject, if not prepared for trial, a motion for delay in order to make preparation would be proper, and would doubtless be entertained. No motion of the kind was made in this case. It would seem there could not have been a want of preparation when the present motion was tried. Its merits and fate depended, not on oral testimony, but on records and papers pertaining to the cause, which were of file in the court. These records and papers were accessible to either party, and were in fact used to their utmost capacity on the trial of the motion. This is shown by the bill of exceptions reserved by appellant, and made a part of the record before us. The motion was tried on its merits, every inch of ground being contested, and reserved for revision in this court. The city court did not err in holding that further notice of the motion was not necessary.

The suit in this case was commenced by original attachment in favor of Jennings against Henry Pearce, sworn to be a non-resident of Alabama. No personal service was ever made on him, and no plea was ever interposed for him, or appearance entered, save the special appearance in September, 1892 entered for the purpose of setting aside and vacating the judgment by default which had been rendered in February preceding. The attachment proceedings were and are regular in form, conforming to our statute. This attachment was levied on personal property; but, a doubt arising whether the property belonged to Henry Pearce, the defendant, the sheriff demanded an indemnifying bond. The bond not being...