Phillips v. D. & J. Enterprises, Inc.

Decision Date29 November 1973
Citation292 Ala. 31,288 So.2d 137
PartiesJimmy N. PHILLIPS v. D. & J. ENTERPRISES, INC., a corporation. SC 256.
CourtAlabama Supreme Court

Harvey Elrod, Decatur, for appellant.

T. J. Carnes, Albertville, for appellee.

MERRILL, Justice.

This appeal is from an order denying appellant-defendant's petition for a rehearing in an action at law under Tit. 7, § 279, Code 1940.

Plaintiff sued defendant for rent, and caused a writ of garnishment to issue to Aetna Insurance Company because the rented building had been destroyed by fire and the garnishee was supposed to be indebted to the defendant. The complaint and the writ of garnishment were filed on June 28, 1971.

On July 29, defendant filed a motion to quash service because the summons and complaint had been served, not on him, but on his wife. An amended complaint and the original complaint were properly served on defendant December 7, 1971. Some three days later, defendant delivered the properly served papers to the office of his attorneys.

On January 26, 1972, plaintiff took a judgment by default, and obtained a judgment for $13,300.00.

The petition for a rehearing under Tit. 7, § 279, was presented to the circuit judge on May 26, 1972. Section 279 provides:

'When a party has been prevented from making his defense by surprise, accident, mistake, or fraud, without fault on his part, he may, in like manner, apply for a rehearing at any time within four months from the rendition of the judgment.'

The petition, evidence and arguments were heard on December 1, 1972 and the trial court, in a written opinion, denied the petition, citing Johnson v. Robertson, 284 Ala. 566, 226 So.2d 627.

Appellant concedes in brief that the cases cited to overturn the holding of the trial court are not Alabama cases. Our cases support the judgment of the trial court.

The main thrust of appellant's argument is that this court should not apply Tit. 7, § 279, but should apply Rule 60(b), ARCP. This rule incorporates most of § 279 but some part of the wording is different. We cannot agree.

The judgment on the petition for rehearing was entered on December 1, 1972. The appeal to this court was taken on January 2, 1973. The transcript of the record was filed in this court on April 26, 1973. Appellant's briefs were filed on June 12 and appellee's briefs were filed on June 26, 1973.

Rule 86, ARCP, makes the effective date of the Alabama Rules of Civil Procedure effective on July 3, 1973 (six months from their adoption by this court on January 3, 1973).

The ARCP were designed to govern the procedure in trial courts. They were not in existence when the trial court decided this case or when the Circuit Court of Marshall County lost jurisdiction of the cause because of the appeal to this court. It would be unjust to reverse a trial...

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8 cases
  • Ex parte Wilson Lumber Co., Inc.
    • United States
    • Alabama Supreme Court
    • February 5, 1982
    ...incorporated "most of § 279 (the "four months statute"), but some part of the wording is different." Phillips v. D. & J. Enterprises, 292 Ala. 31 at 33, 288 So.2d 137 at 138 (1973). A proceeding under the "four months statute" or its successor as found in Rule 60(b), is thus a collateral, a......
  • Havard v. Palmer & Baker Engineers, Inc.
    • United States
    • Alabama Supreme Court
    • May 16, 1974
    ...of the amended complaint filed before July 3, 1973, is not governed by the Alabama Rules of Civil Procedure. Phillips v. D. & J. Enterprises, 292 Ala. 31, 288 So.2d 137 (1973). The complaint must be tested under the rules of pleading in effect before adoption of the Rules of Civil Procedure......
  • Bailey v. City of Mobile
    • United States
    • Alabama Supreme Court
    • May 30, 1974
    ...because all the pertinent action in the trial court took place prior to July 3, 1973, the effective date of ARCP. Phillips v. D & J Enterprises, 292 Ala. 31, 288 So.2d 137. COLEMAN, BLOODWORTH, FAULKNER and JONES, JJ., concur. ...
  • W. T. Ratliff Co., Inc. v. Purvis
    • United States
    • Alabama Supreme Court
    • February 14, 1974
    ...to the trial of this case. Such rule is unavailing where trial was had before the adoption of the new rules. Phillips v. D. & J. Enterprises, Inc., 292 Ala. 31, 288 So.2d 137. HEFLIN, C.J., and HARWOOD, MADDOX and FAULKNER, JJ., concur. ...
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