Kolb v. Swann Chemical Corporation

• Decision Date: 30 March 1944
• Docket Number: 6 Div. 209.
• Citation: 245 Ala. 438,17 So.2d 402
• Parties: KOLB et al v. SWANN CHEMICAL CORPORATION
• Court: Alabama Supreme Court

17 So.2d 402

245 Ala. 438

KOLB et al v. SWANN CHEMICAL CORPORATION

6 Div. 209.

Supreme Court of Alabama

March 30, 1944

Barber & Barber, of Birmingham, for appellants.

Martin, Turner & McWhorter, of Birmingham, for appellee.

LIVINGSTON Justice.

The appeals are from orders or judgments of the Circuit Court of Jefferson County, Alabama, setting aside two judgments against the Swann Chemical Corporation, a corporation, as garnishee, in the cases of P. Val Kolb, plaintiff, and J Berlage Company, Inc., plaintiff, against Theodore Swann doing business as Swann and Company, defendant. The questions presented in the two cases are identical, and they were here submitted together by agreement of the parties.

On November 12, 1940, each of the plaintiffs in the court below appellants here, obtained a judgment in the Circuit Court of Jefferson County against Theodore Swann, doing business as Swann and Company. On March 7, 1941, appellants and another filed a petition in the United States District Court at Birmingham, Alabama, seeking to have Theodore Swann, doing business as Swann and Company, adjudicated an involuntary bankrupt.

On May 15, 1942, each appellant caused a writ of garnishment on his or its judgment to be issued to appellee, Swann Chemical Corporation, a corporation, requiring it to answer, within thirty days from service thereof, whether under the conditions stated in the writ it was indebted to Theodore Swann, doing business as Swann and Company. These writs were served on appellees on the 16th day of May, 1942. On June 6 1942, Theodore Swann, doing business as Swann and Company filed a motion in each case asking that such garnishments and other proceedings in the case be stayed pending disposition of the said proceeding to have Theodore Swann, doing business as Swann and Company, declared a bankrupt. On June 9, 1942, with the consent of each appellant, the court entered an order in each case "staying further proceedings in this cause until dismissal of said petition or adjudication of the defendant as a bankrupt."

On July 28, 1943, the said Theodore Swann, doing business as Swann and Company, filed a petition in the pending bankrupt proceeding pursuant to Chapter 12 of the Bankruptcy Act, asking for an arrangement of his debts: such petition showing that his assets exceeded his liabilities.

On August 11, 1943, each appellant obtained a conditional judgment against appellee, as garnishee, for its failure to answer the garnishment writ, which was made final on September 17, 1943.

On September 22, 1943, appellee filed its motion in each case asking that the judgment entered against it be set aside and held for naught because it was entered in violation of said stay order, and was therefore null and void.

On October 1, 1943, Presiding Judge McElroy and Judge Whit Windham, sitting en banc, granted appellee's motion to set aside the judgments entered against it in each case; and from the order or judgment entered thereon, appeals were perfected in each case, and here consolidated by agreement of the parties for review.

The proceeding in the lower court was not the ordinary case of an application for a new trial after there had been a trial on the merits. It partakes much more of the qualities of a motion to set aside a default or forfeiture. Talladega Mercantile Co. v. McDonald, 97 Ala. 508, 12 So. 34.

In the recent case of Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116, 118, this Court carefully considered the question of the proper mode of presenting to this Court for review the action of the trial court on a motion or petition to vacate an alleged void decree. It was there held, (1) "Where the motion to vacate the original decree is granted and a new trial is ordered, or the original cause is in any wise reinstated for further proceedings, the correct method of review is by mandamus"; and (2) "in a case where the motion to vacate the original decree is granted, but the effect of the vacating decree is not to reinstate the original cause for further proceedings, the proper remedy is by appeal."

As said by this Court in Ex parte Haisten, 227 Ala. 183, 149 So. 213, 215, "An appeal does not lie from the order or judgment of the court in setting aside a judgment by default, and restoring the case to the docket. Therefore, petitioner has not misconceived his remedy by mandamus to have the action of the court here reviewed. Ex parte Parker, 172 Ala. 136, 54 So. 572; Brazel v. New South Coal Co., 131 Ala. 416, 30 So. 832; Hershey Chocolate Co. v. Yates et al., 196 Ala. 657, 72 So. 260; Ex parte Doak, 188 Ala. 406, 66 So. 64; Ex parte Gay, 213 Ala. 5, 104 So. 898; Brown v. Brown, 213 Ala. 339, 105 So. 171; Gibson v. Farmers' Bank, 218 Ala. 554, 119 So. 664; Mosaic Templars v. Hall, 220 Ala. 305, 124 So. 879."

Clearly, the order or judgment setting aside the judgment against the garnishee was...