Lasseter v. Deas

• Decision Date: 11 November 1913
• Citation: 63 So. 735,9 Ala.App. 564
• Parties: LASSETTER v. DEAS.
• Court: Alabama Court of Appeals

63 So. 735

9 Ala.App. 564

LASSETTER v. DEAS.

Court of Appeals of Alabama

November 11, 1913

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Mariah P. Deas, as administratrix, against L. Lasseter. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Ball & Samford and J. Lee Holloway, all of Montgomery, for appellant.

W.P. McGaugh and Weil, Stakely & Vardaman, all of Montgomery, for appellee.

PELHAM, J.

This case was first tried in the Montgomery county circuit court in June, 1910, and a judgment rendered in favor of the defendant, the appellant here. A motion was made by the plaintiff in the trial court to set aside this judgment and grant the plaintiff a new trial, which was granted, and the defendant prosecuted an appeal from this order granting a new trial to the Supreme Court, and upon the creation and organization of this court the case was transferred to it on the 3d day of April, 1911. The plaintiff (appellee) having died in August, 1910, subsequent to taking the appeal, but before submission of the case in the appellate court, the parties appeared in this court on May 9, 1911, and on suggestion of the death of the appellee the case was revived by an order of this court against Mariah P. Deas, as administratrix of J.C. Deas, the original plaintiff and appellee, and the case thereupon submitted. The appeal was dismissed on December 9, 1911, because a sufficient judgment was not shown by the transcript to support an appeal.

Lasseter v. Deas, 2 Ala.App. 469, 57 So. 49. After the case was dismissed here, it again came on for trial in the Montgomery county circuit court on August 18, 1912, and a motion was then made to revive the case in the circuit court on behalf of the plaintiff in the name of the plaintiff's personal representative, Mariah P. Deas, as the administratrix of J.C. Deas, deceased, the original plaintiff. The defendant interposed an objection to this motion as coming too late, and moved to abate the suit because there had been no revivor of the cause of action within the period prescribed by statute--12 months. Code, § 2499. The action was revived by the trial court, and the motion to abate overruled, on the theory that there had been a revivor in the Court of Appeals; a certificate from the clerk showing the order of this court to that effect of date May 9, 1911, having been introduced in evidence on the hearing of the motion. Thereupon the case was tried, and resulted in a judgment for the plaintiff, from which the defendant brings this appeal, and insists, among other matters presented on this second appeal, that the suit was not legally revived within the period required by law that it has abated, and that an order to that effect should be made.

The question turns on whether or not the order of revivor entered in this court was operative and of force and effect as a valid order reviving the cause when the case was formally pending here on appeal. The appellant on the first appeal (who is also the appellant in the present appeal) perfected his appeal at that time to this court, thereby wholly and absolutely removing the case from the trial court into this court, and the effect of this act upon the part of the appellant was to cause the trial court to lose all jurisdiction and control of the case pending the appeal here and an order of revivor within the period required by statute could only have been made in this court. McLaughlin v. Bever (Sup.) 61 So. 62. The order of revivor made in the Court of Appeals was in the interest of the appellant, being a necessary prerequisite of a submission by him of his appeal. The appellant invited this action of the court by his own act for his own benefit when the case was pending regularly in the Court of Appeals, it having, at the time of making the order, jurisdiction of the subject-matter and the parties, and the appellant cannot now be heard to question the validity of the order thus made. Moreover, the appellate court had jurisdiction to entertain the appeal for the purpose of ascertaining whether it had rightful jurisdiction (Gartman v. Lightner, 160 Ala. 202, 208, 49 So. 412), and any order made by it as a necessity to this determination was valid, and would have full force and effect as such. The certificate of the clerk, appended to the transcript, gives the appellate court prima facie jurisdiction, and, though the case may be subsequently dismissed for want of jurisdiction, orders made by the court when the case is pending that are necessary to a submission of the case, or the determination of the question presented for the court's action, or that necessarily follow its order, as a judgment for costs, are within the jurisdiction of the court for the purposes for which the appeal is entertained, and therefore valid. Carey v. McDougald, 27 Ala. 616. The case having been revived within the period by a valid order of the Court of Appeals, the trial court was not in error in its rulings with respect to this matter.

The complaint in the suit as orginally brought contained counts in trover, trespass, and case. On the second trial of the case, after the suit had been revived in the name of Mariah P. Deas, as administratrix of the estate of the original plaintiff, J.C. Deas, the plaintiff filed an amended complaint by adding the common counts. Thereupon the defendant, in answer to the claim, set up under the common counts filed pleas of set-off based on a counterclaim due from the original plaintiff to the defendant on a demand secured by a mortgage, in which plaintiff waived his exemptions as to personal property. The plaintiff filed a special replication to the defendant's pleas of set-off, averring in effect that the original plaintiff, J.C. Deas, did not own as much as $1,000 worth of personal property at the time of bringing the suit or at the time of his death, and alleging that therefore the claim upon which plaintiff's suit was based was exempt from the payment of the claim which defendant sought to set off in his said pleas. The court overruled the defendant's demurrers to the special replication undertaking to set up an exemption as an answer or bar to the defendant's claim pleaded as a set-off to plaintiff's demand.

As it...