Mobile Fuel Shipping, Inc. v. Scott

• Decision Date: 12 September 1979
• Citation: 375 So.2d 796
• Parties: MOBILE FUEL SHIPPING, INC. v. Charles M. SCOTT. Civ. 1927.
• Court: Alabama Court of Civil Appeals

Page 796

375 So.2d 796

MOBILE FUEL SHIPPING, INC. v. Charles M. SCOTT.

Civ. 1927.

Court of Civil Appeals of Alabama.

Sept. 12, 1979.

Rehearing Denied Oct. 10, 1979.

Lowell H. Becraft, Jr., Mentone, for appellant.

Charles M. Scott, Fort Payne, for appellee.

HOLMES, Judge.

This is an appeal by the Defendant from an order dismissing with prejudice the plaintiff's cause of action against defendant.

The dispositive issue is whether any ruling adverse to the defendant has been rendered by the trial court from which the defendant may maintain an appeal. We hold that there was no such adverse ruling and affirm the trial court's dismissal of the action.

The Circuit Court of DeKalb County, on May 9, 1977, granted a summary judgment in favor of the plaintiff in the amount of $1,924. Subsequently, the defendant and/or stockholder of the defendant paid the judgment. On February 24, 1978, the trial court set aside the summary judgment on motion by the defendant and restored the case to the trial docket. In March of 1978, the defendant appealed to this court. In Mobile Fueling Shipping, Inc. v. Scott, Ala.Civ.App., 360 So.2d 1028 (1978), we dismissed the defendant's appeal and held that no justiciable controversy existed where the defendant appealed from a summary judgment granted to the plaintiff which had been set aside by the trial court.

Following dismissal of the appeal, numerous motions and other documents were filed. On April 17, 1979, the circuit court dismissed the plaintiff's case with prejudice to both parties. The court's order of dismissal stated that the defendant had paid the plaintiff the amount which was the subject of the lawsuit and that therefore no justiciable controversy existed. It is from this order of dismissal that the defendant appeals.

It is well settled that only an adverse ruling of the trial court is subject to an assignment of error and, consequently, reviewable on appeal. McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973); Tyson v. U. S. Pipe and Foundry Co., 286 Ala. 425, 240 So.2d 674 (1970).

The dismissal of the plaintiff's case, in this instance, was clearly in favor of the defendant such that the defendant was not aggrieved or prejudiced in any way thereby. Thus, there is no adverse ruling about which the defendant can complain.

There being no adverse ruling against the defendant, there is no justiciable controversy for this court to decide.

The defendant in brief argues that the payment of a judgment by a judgment debtor does not work a waiver of the right of appeal. Defend...