Reed v. Hammond

• Decision Date: 20 April 1916
• Docket Number: 6 Div. 302
• Citation: 71 So. 692,196 Ala. 302
• Parties: REED v. HAMMOND.
• Court: Alabama Supreme Court

71 So. 692

196 Ala. 302

REED v. HAMMOND.

6 Div. 302

Supreme Court of Alabama

April 20, 1916

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Assumpsit by Bell Hammond against John B. Reed. Default judgment for plaintiff, and from rulings of the circuit court sustaining a demurrer to the defendant's petition for a rehearing dismissing the petition, and overruling a motion to set aside the former order and allow an amendment to the petition defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

The original motion for new trial is based on the following grounds:

(1) The finding of the court contrary to the evidence in the case. (2) That defendant, without fault on his part, and having a meritorious defense to the case, through surprise accident, or mistake, was prevented from making said defense before the final findings of the court.

Demurrers were interposed to this motion, and were sustained. The motion was filed February 2, 1915, and demurrers sustained and motion dismissed February 13, 1915. On February 25, 1915 the movant appeared, and moved the court to set aside the order made on February 13th, and permit defendant to amend his motion for new trial so as to show, among other things, that before the judgment was entered, the attorney for defendant had died, and that defendant did not become aware of the death of his attorney of record until about the middle of January, 1915, some time after the judgment had been entered against defendant, and, in support of said motion, to permit defendant to file affidavit. This motion was also denied.

Douglas & Ray, of Birmingham, for appellant.

A. Leo Oberdorfer, of Birmingham, for appellee.

SOMERVILLE J.

This appeal is from rulings of the circuit court sustaining a demurrer to appellant's petition for a rehearing under section 5372 of the Code, and dismissing the petition, and overruling his motion, made 12 days later, to set aside the former order and allow an amendment to the petition.

The original petition was fatally defective in its failure to state any facts in support of its prayer for relief, and was subject to the demurrer. Chastain v. Armstrong, 85 Ala. 215, 3 So. 788. It does not appear that petitioner then offered to amend the petition, and it was properly dismissed.

Conceding without deciding, that the entertainment of his subsequent motion to set aside that order was...