Skelton v. Weaver

• Citation: 266 Ala. 335,96 So.2d 288
• Decision Date: 21 March 1957
• Docket Number: 6 Div. 811
• Parties: Theima Hunter SKELTON et al. v. Larry Richard WEAVER, Pro ami Theren Weaver.
• Court: Supreme Court of Alabama

Page 288

96 So.2d 288

266 Ala. 335

Theima Hunter SKELTON et al. v. Larry Richard WEAVER, Pro ami Theren Weaver.

6 Div. 811.

Supreme Court of Alabama.

March 21, 1957.

Rehearing Denied June 27, 1957.

Davis & Zeanah, Tuscaloosa, for appellants.

E. D. McDuffie, Tuscaloosa, for appellee.

COLEMAN, Justice.

Appellee, a minor six years old, by next friend, filed complaint containing one count against appellants for damages for personal injury caused by negligence of appellant, Thelma Hunter Skelton, while she was operating an automobile as agent or servant of appellant, Ernest S. Skelton.

On March 13, 1954, process was personally served on appellants.

On April 12, 1954, appellants filed demurrer.

On April 23, 1954, appellee withdrew demand for jury, filed affidavit of nonmilitary service, and default judgment was entered for appellee. The judgment entry does not in anywise refer to the demurrer.

The complaint sufficiently states a cause of action. Although the judgment entry contains clerical errors, it is in form proper and complete, and contains this recital:

'* * * The defendant's then being called come not, neither in person nor by attorney, but wholly makes default. It is, therefore, considered by the court and it is the order and judgment of the court that the Plaintiff have and recover of the Defendants its damages in this cause.'

The judgment further recites that the damages being undetermined and no jury demanded the court proceeds 'to try this case'; and after hearing all the evidence introduced by the plaintiff and considering same, it is the order and judgment of the court that the plaintiff recover.

The appeal is from this judgment rendered April 23, 1954.

For a statement of errors assigned, we quote from the appellants' brief:

'As has been previously stated, the only question presented in this appeal is whether the Circuit Court of Tuscaloosa County, Alabama, was correct in its action of rendering and entering a judgment by default with execution of writ of inquiry without first having overruled, passed on, or disposed of a demurrer which had previously been filed by the defendants in the case within the prescribed time. The assignments of error heretofore made by the defendants are and were designed so as to present this single question. Said assignments of error are so related, therefore, so as to present this single question, and said assignment of error will be argued herein together.'

We restate the question as follows:

On appeal at law, does the entry of judgment by default constitute reversible error where defendant has filed a demurrer which has not been ruled on, when there is no bill of exceptions, no transcript of evidence, and no statement in the judgment entry, or elsewhere in the record, to rebut the inference that the demurrer has been waived, withdrawn, or abandoned?

We answer the restated question in the negative. Rendition of such a judgment so presented by the record is not reversible error on appeal.

We are not to be understood as holding that a court would not be in error in rendering a default judgment without ruling on a demurrer timely filed, where the record on appeal shows that the demurrer was called to the attention of the court and insisted on by the defendant.

The transcript before us contains: Organization of the court, summons and complaint, return of sheriff showing personal service on appellants, demurrer, request to withdraw demand for jury, nonmilitary affidavit, and the judgment rendered April 23, 1954. Thereafter appears certain matter purporting to have occurred on October 22, 1954, which we hereinafter mention. Following this matter, notice of appeal, and security for costs are shown.

In determining the question presented, we consider the judgment appealed from and the record of the proceedings which resulted in that judgment.

A case decided by this court in 1822 supports appellants' argument that entering the default judgment in this case without ruling on the demurrer constituted reversible error.

In that early case, suit was on a promissory note. Defendant filed a demurrer, yet judgment by default was entered against him and defendant appealed. In reversing the judgment, this court said:

'Admitting that the demurrer was not sustainable, it should have been disposed of by a decision of the court below. It could not properly be treated as a nullity. There was error in rendering the judgment as by default. * * *.' Flournoy v. Childress, Minor 93.

In one edition of Minor, a footnote states that this case is in conflict with later cases, citing 1 Ala. 443, 515.

In a footnote in the 1891 edition, referring to the rule so set out in Flournoy v. Childress, appears simply the word 'Overruled,' without citing authority.

We hold that Flournoy v. Childress, supra, has been overruled on the proposition quoted above. Bryant v. Simpson, 3 Stew. 339; McCollom v. Hogan, 1 Ala. 515; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 So. 249; Schwarz v. Oppenheimer, 90 Ala. 462, 8 So. 36; Hart v. Sharpton, 124 Ala. 638, 27 So. 450; Alabama National Bank v. Hunt, 125 Ala. 512, 28 So. 488; Memphis & C. R. Co. v. Martin, 131 Ala. 269, 30 So. 827; Brandon v. Leeds State Bank, 186 Ala. 519, 65 So. 341; Hendley v. Chabert, 189 Ala. 258, 65 So. 993.

In Bryant v. Simpson, supra, decided in 1831, in an action of covenant where pleas of payment and covenant performed were on file, judgment nil dicit, without noticing the pleas, was rendered. On appeal, the judgment was affirmed, and this court said:

'* * * The next entry is as follows: 'came the parties by attorney, and the defendant saying nothing, judgment is entered by nil dicit; and thereupon came a jury of good and lawful men, to inquire of damages,' &c. who were sworn to assess the damages. It sufficiently appears from this entry, that both the parties were present by counsel, when these proceedings took place, and that the defendant did not attempt to sustain his pleas. Were it necessary, we might be authorized to infer, that the defendant's counsel acknowledged his inability to sustain his pleas by proof, and thus virtually withdrew them; but this is not a necessary implication in support of the judgment. * * * .'

In McCollom v. Hogan, supra, decided in 1840, in an action of assumpsit on promissory note, pleas of fraud, payment, and non-assumpsit, among others, appeared in the record, but no notice was taken of these pleas, and judgment nil dicit was rendered for plaintiff. On appeal, entry of that judgment, when in fact a defense was made, was assigned as error. In affirming that judgment, this court said in pertinent part:

'The question presented in this case, is similar in principle to that decided by this court in Abercrombie v. Mosely, 9 Port. 145. The only difference is, that in the case cited one issue was determined by the jury, whilst in this the pleas were wholly disregarded. We then stated the reasons which induced us to depart from some of the earlier decisions of this court on this matter of principle, and those reasons are equally forcible, whether applied to the state of the record in this or the other case. * * * We must infer that this suit was called as other suits, and that the defendants either were not present in person or by attorney; or if present, that they acquiesced in the judgment by default by waiving their pleas.

'Furthermore, the judgment entry recites that the defendants said nothing in bar or preclusion of the plaintiffs demand. This is presumed to be the solemn act of the court, and certainly as much credit is due to it as to the mere recital by the clerk of the existence of certain pleas, which must have been waived, or the minutes of the court must recite a false fact.

'We do not undertake to decide on the case presented, that a court is authorized to render a judgment by default or by nil dicit, when pleas are interposed within the proper period, though the defendant may afterward be passive; but the conclusiveness of such an entry as appears in this transcript can only be rebutted by a bill of exceptions, as was done in Gaston v. Parsons, 8 Port. 469, or by some statement in the judgment entry, from which it may be legitimately inferred that the pleas were neither waived, withdrawn, nor abandoned.'

McCollom v. Hogan, supra, has been criticized, Barnard v. Irwin, 8 Ala.App. 544, 62 So. 963, certiorari denied Ex parte Irwin, 184 Ala. 666, 63 So. 1027; and a dictum in a later case says McCollom v. Hogan has been departed from. Wooten v. Traders' Securities Co., 216 Ala. 147, 113 So. 492.

It appears, however, that the departure was limited to cases where a negative plea such as the general issue had been interposed by defendant and remained undisposed of by the court. We do not think the doctrine has been departed from where an affirmative plea had been filed by defendant and remained undisposed of by the court.

Elyton Land Co. v. Morgan, supra [88 Ala. 434, 7 So. 249], decided in 1889, appears to be decisive of the instant case. In that case, the action was on account. Defendant filed demurrer. The record does not show any ruling on the demurrer. Judgment by default was rendered for plaintiff, and that judgment is assigned as error, together with failure to rule on demurrer. We quote the entire opinion in that case:

'There is no merit in the present appeal. The objection sought to be raised by demurrer cannot be presented in that way. Demurrer raises the question of the sufficiency of the complaint, and the present complaint is sufficient. If the affidavit to the account was insufficient, that could be raised when it was offered in evidence. Code of 1886, § 2773. The defect, if any, went to the evidence, not to the pleadings. The demurrer was frivolous. But if the demurrer had been well taken, it could not avail the appellants. [Emphasis supplied.] It was not enough that a sufficient issue was formed. Counsel should have been present to invoke the action of the court...