Little v. Peevy

• Decision Date: 08 June 1939
• Docket Number: 1 Div. 62.
• Citation: 189 So. 720,238 Ala. 106
• Parties: LITTLE, SUPERINTENDENT OF BANKS, v. PEEVY.
• Court: Alabama Supreme Court

189 So. 720

238 Ala. 106

LITTLE, SUPERINTENDENT OF BANKS, v. PEEVY.

1 Div. 62.

Supreme Court of Alabama

June 8, 1939

Appeal from Circuit Court, Clarke County; Joe Pelham, Jr., Judge.

Action on promissory notes by J. H. Williams, as Superintendent of Banks, liquidating the Bank of Grove Hill, revived in name of James B. Little, Superintendent of Banks, as successor to said Williams, against C. B. Peevy. From a judgment granting defendant's motion to set aside judgment nil dicit and for new trial, plaintiff appeals and applies for alternative writ of mandamus.

Appeal dismissed; mandamus awarded with directions.

Roy W Kimbrough, of Thomasville, and Hill, Hill, Whiting & Rives of Montgomery, for appellant.

Paul S Jones, of Grove Hill, for appellee.

THOMAS Justice.

The submission of this case was on motion to set aside a judgment nil dicit and to restore the cause to the docket for a new trial.

The first two grounds of defendant's motion for the new trial show that judgment of the court was rendered on the verdict of the jury. The bench notes are set forth in the affidavit of the clerk of the court introduced in evidence, and disclose the following:

"I, J. Henry Megginson, Clerk of the Circuit Court of Clarke County, Alabama, do hereby certify under my official seal that the following is a true and correct chronological record of the above styled case as same appears in said file and on the docket of said Court, both of which are in my possession in my office, towit:

"Suits filed by plaintiff January 27, 1936;

"Service on defendant January 28, 1936;

"Answers filed, demanding a jury by defendant February 27, 1936;

"September 22, 1936--continued by plaintiff on account of absence of W. D. Rushing, Liquidating agent;

"March 3, 1937--continued on account of sickness of defendant;

"September 22, 1937--Continued;

"March 23, 1938--Continued on account of sickness of defendant;

"September 29, 1938--submitted to a jury of twelve men who returned a verdict for the plaintiff, and assessed the damages at $1,405.81;

"October 27, 1938--Motion filed by defendant for new trial. * * *."

The affidavit of plaintiff's attorney, Roy W. Kimbrough, Esq., sets forth in some detail how the judgment was rendered as follows: "Thereupon the Court called a jury of 12 men, the plaintiff offered his evidence and proved a reasonable attorney's fee. The Court gave the general charge against the defendant, and the jury, after studying the evidence introduced by the plaintiff, returned a verdict for the plaintiff in the sum of $1,405.81, reducing the attorney's fee from $150.00 to $75.00. Thereupon the Court entered a judgment for the plaintiff on the verdict of the jury in the sum of $1,405.81, the amount found by the jury to be owing the plaintiff by the defendant."

The appellant's predecessor in office, as Superintendent of Banks of Alabama, liquidating the bank, filed this suit against appellee (defendant) on January 27th, 1936, nearly three years before the judgment in question was rendered against defendant. The suit was on three promissory waive notes made by defendant to the Bank of Grove Hill, dated March 20th, 1933, one for $34.45, another for $475, both payable May 3rd, 1933, and one note for $500 payable June 20th, 1933. Service was had on the defendant on January 28th, 1936, and he, by his attorneys, filed a plea of the general issue, demanding a trial by jury on February 27th, 1936.

No sworn plea, or plea of payment nor any other plea, except the general issue, was filed by defendant prior to the rendition of judgment against him on the 29th day of September, 1938, for the sum of $1,405.81, the damages assessed by the jury together with the costs in that behalf expended.

On the 27th day of October, 1938, defendant filed his motion to vacate and set aside the verdict of the jury, and the judgment of the court rendered thereon, claiming by way of conclusion, that he had a meritorious defense to the action which he was prevented from presenting by accident or mistake.

The sixth ground of the motion to set aside the verdict and judgment stated that when defendant was sued in this case he retained counsel and filed an appearance with the idea of litigating said case as he had a meritorious defense to said action, in that he had paid all, or a substantial part, claimed to be due on the note or notes on which he was sued. The facts as to any such claimed payment, the place and date thereof, the medium of payment, whether by check or in cash, by whom and to whom made, were not set forth so that the court might judge of their sufficiency, nor so as to disclose whether on a new trial the defendant might be able to sustain his alleged defense, nor was any reason disclosed why for nearly three years after defendant had engaged counsel and entered his appearance, no plea of payment had been filed nor any other plea, except the general issue.

The defendant's said motion did not set forth the facts constituting his alleged defense so that the court might judge of their sufficiency, as a meritorious defense under the rules of law that obtain and recently declared by this court on many authorities stated in Union Indemnity Co. v. Goodman, 225 Ala. 499, 144 So. 108.

As excuse for failing to appear and defend the action as set for trial, defendant's motion merely alleged that "said cause was set for trial on Monday, September 26th, 1938, at which time this defendant was un-expectedly called out of town on business which was imperative that he attend to, and did not return on said date in time to attend court; that defendant was under the impression after he did not return that said cause had been definitely continued by the Court, and was not aware that the same had been continued by said Court from day to day until the 29th day of September, 1938, at which time the defendant was again out of town on important business and his attorneys were unable to contact him until after the judgment had been rendered in said cause and the Court had adjourned for the term." (Italics supplied.)

The plaintiff appeared and resisted the defendant's motion to vacate the verdict of the jury and set the same aside and the judgment of the court rendered thereon. As grounds for resisting said motion, plaintiff assigned, among others, the following: That the grounds assigned in said motion for new trial were vague, indefinite and general; that defendant had shown no diligence in defense of the suit filed against him practically three years ago, towit, January 27th, 1936; that defendant did not show diligence and interest in defense of this cause, which the law and dignity of the court required; and that no business which defendant had could have been of more importance to him on Monday, September 26th, 1938, than this suit, which had been pending since January 27th, 1936, and his absence from town did not warrant the trial court granting him a new trial.

Defendant's absence from the court on September 26th, 1938, indicated an utter indifference for and lack of diligence in his defense of said suit.

The motion of appellant was to the effect that although defendant should have been in court on Monday, September 26th, 1938, the day the case was set for trial, and failed to appear on said date without any excuse, the court continued said cause from day to day throughout said term in the presence of defendant's two attorneys, but at no time during said term did defendant appear in court; that defendant was represented in court on Monday, September 26th, 1938, and each day thereafter during said term by competent, diligent attorneys, who, from the record, had been in said case since February 22nd, 1936, and said attorneys heard every continuance of the cause and heard the court specifically instruct them that not later than Tuesday, September 27th, 1938, the case must be disposed of during said week; that the court very positively stated to defendant's attorneys on Monday or Tuesday of the term of court that said case must be disposed of during that week, and from aught that appears, defendant was at his home each night of said week and during a part of some of the days at least before said judgment was taken against him.

Knowledge of defendant's counsel that said case was on docket for trial on September 26th, 1938, and had been continued by the court, with positive instructions that it must be disposed of during the week, must be imputed to defendant as a matter of law, and no surprise can be sustained where there is previous knowledge.

Defendant's attorneys of record were in court each day of said term, including September 29th, 1938, the day said verdict was rendered by the jury, and they did not at any time file a formal motion for a continuance or postponement of said cause.

Defendant's motion for a new trial alleges in a vague and general way that he has a defense in said cause, but does not anywhere in said motion specifically set out in what particular or particulars his said defense consists.

Defendant's allegation of a defense is too vague and indefinite to meet the requirements of the law in a motion for a new trial. Defendant's affidavit states, in part, as follows "I had planned to attend Court on said day but was unexpectedly called out of town on Monday morning September 26th, 1938 on very important business, and did not return until after Court had adjourned on said day. At the time I left home I had expected to return early in the afternoon at which time I could have attended Court as it was my understanding that it had been the custom in the past to call no cases for trial on the first day of Court until in the afternoon. Upon my return I inquired of several friends as to what disposition had been made of...