Pridgen v. Head, 4 Div. 247

• Decision Date: 15 February 1968
• Docket Number: 4 Div. 247
• Parties: James Leslie PRIDGEN v. Jewel HEAD.
• Court: Alabama Supreme Court

Page 426

210 So.2d 426

282 Ala. 193

James Leslie PRIDGEN v. Jewel HEAD.

4 Div. 247.

Supreme Court of Alabama.

Feb. 15, 1968.

Rehearing Denied May 23, 1968.

Alice L. Anderson, Enterprise, for appellant.

Rowe & Lane, Enterprise, for appellee.

LAWSON, Justice.

On September 5, 1958, Mrs. Jewel Head filed suit in the Circuit Court of Coffee, County, Enterprise Division, against James Leslie Pridgen to recover damages for injuries which she sustained in a motor vehicle collision which occurred on or about November 8, 1957. She demanded a trial by jury.

Mrs. Head's complaint contained two counts. An unnumbered count, to which we will refer hereinafter as the first count, charged negligence. The second count in pertinent parts reads:

'Plaintiff claims of the defendant FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00), damages for that heretofore on to-wit: 8 November 1957, plaintiff was sitting in the cab of a one-half ton 1955 model Chevrolet Pickup truck which was parked in the unloading yard of Sessions Oil Mill Company on the West side of North Main Street, which street is also known as U.S. Highway No. 84, in the City of Enterprise, Alabama, and at a point on the West side of said street or highway just north of the railroad crossing. That then and there the defendant was driving a Chevrolet Automobile from towards New Brockton to Enterprise, Alabama, on said street or highway at a fast rate of speed. Plaintiff alleges that the defendant then and there wantonly injured plaintiff by driving the said Chevrolet Automobile into, upon, and against the Chevrolet truck it which plaintiff was sitting, as aforesaid, and thereby inflicting upon the plaintiff grievous bodily injuries, to-wit: * * *.'

The defendant, Pridgen, did not appear or plead to the complaint. On October 10 or 14, 1958, judgment by default with writ of inquiry was entered against Pridgen. Plaintiff's jury demand was withdrawn. (Act 74, approved June 10, 1953, 1953 Acts of Alabama, Vol. 1, p. 103.) On November 24, 1958, the writ of inquiry was executed before the court and the following bench note was entered: 'On execution of writ of inquiry, judgment for Plf. against Deft. in the amount of $3,000.00, with cost.' A general judgment was entered by the Clerk in conformity with the bench notes.

Apparently no action was taken on the judgment until January 10, 1964, when, on affidavit of counsel for the plaintiff, the Circuit Clerk issued a writ of garnishment directed to Bama Cotton Mills, Inc., a corporation, Enterprise, Alabama. The writ of garnishment was served on the garnishee on January 11, 1964. Notice of the issuance of the writ of garnishment was served on Pridgen on January 13, 1964. On February 11, 1964, the answer of the garnishee was filed, wherein the garnishee answered that the defendant, Pridgen, was employed by garnishee and that it would withhold 'from the salary, wages, or compensation, as required, and pay total into Court.' Pursuant to the garnishment and beginning on January 20, 1964, the garnishee withheld and paid into the court at intervals of two weeks various sums of money.

On January 21, 1964, the defendant, Pridgen, filed a petition for voluntary bankruptcy, listing the judgment obtained against him by the plaintiff, Mrs. Head, together with accrued interest and costs, making a total of $4,006. The petition for bankruptcy set forth that Bama Cotton Mills, Inc., had been garnished.

On March 18, 1964, the Referee in Bankruptcy, after a hearing, entered his findings of facts and conclusions of law wherein the judgment in question was considered. The Referee refused to release to plaintiff, Mrs. Head, the funds paid into court under the garnishment and said, in substance, that it was impossible to determine from the record whether the judgment in question was rendered on one or both counts of the complaint, and, that from the evidence introduced at the hearing, the Judge of the Circuit Court of Coffee County could have fairly entered the judgment under either or both counts of Mrs. Head's complaint. The Referee further held that the court which rendered the judgment should determine whether or not the judgment in question is dischargeable under § 17 of the Bankruptcy Act (Title 11, § 35, United States Code Annotated), with section, in pertinent parts, reads:

'A discharge in bankruptcy shall release a bankrupt from all of his provable debts * * * except such as * * * (2) are liabilities for obtaining money or property by false pretenses or false representations, Or for willful and malicious injuries to the person or property of another, * * *.' (Emphasis supplied.)

On June 26, 1964, the Referee in Bankruptcy rendered a judgment, order or decree, which reads in pertinent parts as follows:

'IT IS ORDERED that the said bankrupt be, and he hereby is, discharged from all debts and claimed which, by the Act of Congress relating to Bankruptcy, are made provable against his estate Except such debts as are, by said Act, excepted from the operation of a discharge in bankruptcy.' (Emphasis supplied.)

On August 17, 1964, the defendant, Pridgen, filed in the Circuit Court of Coffee County, Enterprise Division, a motion to dismiss and quash the garnishment, in which motion he set forth the bankruptcy proceedings, including the discharge.

The Judge of said Circuit Court, on August 27, 1964, entered an order setting September 22, 1964, as the day for hearing the said motion to dismiss and discharge the garnishment. A hearing was held on that date, at which hearing evidence was taken bearing on the manner in which the collision occurred on or about November 8, 1957, that is, the motor vehicle collision which precipitated the bringing of the suit for damages by the plaintiff, Mrs. Head, against the defendant, Pridgen.

On February 5, 1965, the court entered its judgment denying the defendant's motion to dismiss and quash the garnishment.

Thereafter, on March 8, 1965, the Clerk of the Circuit Court approved security for costs of appeal which had been executed by Pridgen and others on March 6, 1965. The citation of appeal served on the attorney for the plaintiff, Mrs. Head, showed that the appeal had been taken to the Court of Appeals of Alabama. Certificate of appeal was filed in the Court of Appeals on March 22, 1965, and the record was filed in that court on May 4, 1965.

On May 24, 1965, Mrs. Head, the appellee, filed in the Court of Appeals a motion to dismiss the appeal on the ground that that court was without jurisdiction, in that 'the principal amount of the judgment, accrued interest and Court costs was in the total amount of $4,006.00.' In the alternative, the appellee prayed that the cause be transferred to this court. The Court of Appeals does not have jurisdiction 'where the amount involved, exclusive of interests and costs, does not exceed the sum of one thousand dollars.' § 86, Title 13, Code 1940.

On June 2, 1965, the appellant, Pridgen, filed in the Court of Appeals a request for permission to file three additional assignments of error, which read:

'1. There is no return of service of process in said cause sufficient to support the judgment herein. (Tp. p. 3)

'2. There is no valid return of service of process in this cause. (Tp. p. 3)

'3. The purported return of service of process is as follows: 'Executed this 5 day of September, 1958, by leaving a copy of the within writ. H. D. Tillman, by: R. M. Sparks, D.S.' Such return is a nullity. It does not show a copy of the summons to have been served upon the appellant. (Tr. p. 3)'

On June 3, 1965, the appellant, Pridgen, filed his brief in the Court of Appeals and also on that date filed in the Court of Appeals demurrers to appellee's motion to dismiss the appeal. The appellant, however, requested that the cause be transferred to this court if he was mistaken in his belief that the Court of Appeals had jurisdiction.

On June 7, 1965, the appellee, Mrs. Head, filed in the Court of Appeals a motion to strike the request made by appellant for permission to file additional assignments of error, which motion concluded:

'If the appellee is mistaken in the relief sought in the foregoing motion she now prays permission from this Honorable Court for leave to amend the service of process, nunc pro tunc, in this cause in the trial Court below and that the record of the proceeding on the nunc pro tunc amendment be certified to this Honorable Court by the trial Court below.'

On June 24, 1965, appellee filed her brief in the Court of Appeals.

On June 22, 1965, the appellant, Pridgen, filed in the Court of Appeals an instrument bearing the caption: 'Demurrers to Motion of Appellee to Dismiss.' As we have shown, the appellant had, on June 3, 1965, filed demurrers to the motion to dismiss.

On July 2, 1965, there was filed in the Court of Appeals a document bearing the caption: 'Certification of Proceedings on Plaintiff's Motion for Permission, to Amend Sheriff's Return of Service of Process Nunc Pro Tunc.' This document was forwarded to the Court of Appeals by the Clerk of the Circuit Court of Coffee County and bears her certificate. As far as we can determine, the Court of Appeals had not acted on appellee's motion for permission to amend nunc pro tunc the sheriff's return.

On July 22, 1965, the cause was submitted in the Court of Appeals 'on briefs, on motion and on merits.'

On July 23, 1965, the appellant, Pridgen, filed a reply brief in the Court of Appeals.

Without any action having been taken on any motions or requests which had been filed, the Court of Appeals on October 11, 1965, transferred the entire cause to this court and submission was had here on that date 'on briefs, on motions and on merits.'

Motion to Dismiss Appeal

The fact that the appeal was taken to the Court of Appeals rather than to this court does not justify a dismissal of the appeal. The cause has been transferred to this court in keeping with a practice of long standing where the appeal is taken to...