Marion v. Regenstein

• Decision Date: 08 June 1893
• Citation: 13 So. 384,98 Ala. 475
• Parties: MARION v. REGENSTEIN ET AL.
• Court: Alabama Supreme Court

13 So. 384

98 Ala. 475

MARION v. REGENSTEIN ET AL.

Supreme Court of Alabama

June 8, 1893

Appeal from city court of Anniston; B. F. Cassady, Judge.

Action by J. Regenstein & Co. against Georgie Marion. Plaintiffs had judgment by default, and defendant filed her motion to set the same aside. Plaintiffs demurred to the motion, on the ground "that the motion shows that the judgment was obtained by default, and that the matters and things relied on to set it aside could and should have been specially pleaded by defendant to be available to her as a defense to the action." The demurrer was sustained, and defendant appeals. Affirmed.

King &amp Carthell, for appellant.

Matthews & Whiteside, for appellees.

McCLELLAN J.

This action is prosecuted by Regenstein & Co. against Georgie Marion. The complaint contains two counts,-the first on a note executed by Georgie Marion, with waiver of exemptions and the second, on an account for goods, chattels, and merchandise sold defendant by plaintiffs. Judgment in due course was taken by default. This judgment was manifestly under the first count, since it contains a declaration of waiver of exemptions. Afterwards motions were severally made by Georgie Marion to set aside the judgment by default, and by J. H. Marion, her husband, for a new trial. The gist of each of these motions lies in the fact that at the time of executing said note, continuously since then, and at the times of judgment and motions made, Georgie Marion was a married woman, the wife of J. H. Marion, and the latter had not in writing assented to the execution of the note by her. Demurrers were sustained to each of these motions, and they were severally denied and dismissed. Georgie Marion took this appeal, and errors are assigned here separately by her and J H. Marion.

It is not readily, or at all, conceivable what standing J. H Marion had on the record below to make any motion in the cause. He was not a party to the suit, nor in any legal sense to be affected by the judgment. His motion was for a new trial, which, even if he had been a party, he could not have made, since there had been no trial, within the purview of our statute obtaining in the premises, and no motion for a new trial could be entertained, (Truss v. Railroad Co., [Ala.] 11 South. Rep. 454;) and, moreover, he not only had no right to prosecute an appeal, but has not attempted to do so. For each of these several reasons, further reference to him will be pretermitted.

On this appeal the only question presented is as to the right of Mrs Marion to have the judgment by default set aside. Her motion was made solely to that end, and that is the only relief she seeks. The mode of executing that...