Schwartz v. Oppenheimer

• Decision Date: 29 May 1890
• Citation: 90 Ala. 462,8 So. 36
• Parties: SCHWARTZ v. OPPENHEIMER ET AL.
• Court: Alabama Supreme Court

8 So. 36

90 Ala. 462

SCHWARTZ v. OPPENHEIMER ET AL.

Supreme Court of Alabama

May 29, 1890

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

On April 22, 1889, the appellees filed their complaint against the appellant, suing on an account for goods sold and delivered. On the 23d day of May, 1889, the defendant, by his attorneys, filed his pleas-the general issue and payment. It is stated in the bill of exceptions that, by a mistake of the clerk of said court, these pleas were placed in a file of another cause then pending in said court. On May 30, 1889 when this case was called, there being found in the file no pleas, the plaintiffs' counsel asked for a judgment by default, with a writ of inquiry. On the same day, the court granted said judgment by default, and, upon inquiry by the jury, the exact amount of the indebtedness was ascertained and judgment therefor entered up. On the 5th day of July 1889, the defendant, by his attorneys, spread upon the motion docket of said court a motion to set aside the said judgment rendered as aforesaid. On the 6th of August, 1889, after hearing the arguments for both sides, the court granted said motion, and ordered the judgment rendered May 30, 1889, set aside. On the same day, the plaintiffs, by their attorneys made a motion to set aside the above order setting aside the former judgment, as entered May 30th, on the ground that the motion of the defendant was not made until after the lapse of 30 days from the rendition of said judgment. The court granted this motion, and vacated and annulled the order setting aside the judgment rendered May 30th, and the defendant thereupon duly excepted. The defendant now appeals, and assigns the rendition of the judgment by default, and the granting of plaintiff's motion, as error.

Feagin & Wilkerson, for appellant.

Ward & John, for appellees.

MCCLELLAN J.

The fact that an affirmative plea not verified by affidavit has been filed will not prevent the rendition of a judgment by default, unless the defendant appears to sustain it. McCollom v. Hogan, 1 Ala. 515; Dougherty v Colquitt, 2 Ala. 337; McCoy v. Harrell, 40 Ala. 232; Lehman v. Hudmon, 85 Ala. 135, 4 South. Rep. 741; Home Protection of North Alabama v. Caldwell, 85 Ala. 607, 5 South. Rep. 338; Land Co. v. Morgan, 88 Ala. 434, 7 South. Rep. 249. Section 11 of the act regulating the practice and proceedings in civil cases in the circuit court of Jefferson county, etc., provides "that final...